
fir 

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I LIBRARY OF CONGRESS. 1 



» UNITED STATES OF AMERICA. 



LOWELL LECTURES 



THE 



SCIENCE OF GOVERNMENT 



AS EXHIBITED IN THE 



INSTITUTIONS OF THE UNITED STATES OF AMERICA. 



BY 



CHARLES B. GOODRICH. 




BOSTON: 

LITTLE, BROWN AND COMPANY 

1853. 






^ 



Entered according to Act of Congress, in the year 1853, by 

JOHN AMOKY LOWELL, 

In the Clerk's Office of the District Court of the District of Massachusetts. 



CAMBRIDGE: 
ALLEN AND FARNHAM, PRINTERS, 

REMINGTON STREET. 



T O 



JOHN A. LOWELL. 

Having had an opportunity to observe the fidelity 
and solicitude with which you discharge the trust con- 
fided by the late John Lowell, by whose munificence 
The Lowell Institute has been established, permit me 
to say, his intention has been successfully carried into 
effect by your care and attention. Respectfully, I 
acknowledge my obligation for the kindness and 
courtesy which you have extended to me. 

C. B. Goodrich. 

Boston, July 27, 1853. 



TO THE READER. 



The following lectures were read before the Lowell 
Institute, commencing November 30th, 1852, ending 
January 7th, 1853. The contract for their preparation 
was made, in behalf of the Institute, by Benjamin E. 
Cotting, during a temporary absence of Mr. Lowell. 
The subject and its mode of discussion, were adopted 
by myself, with an implied understanding that mere 
party politics should be avoided, except so far as an 
exposition of the system might induce to their consid- 
eration. In any and every discussion of the system 
of government which exists in the United States, it 
should be borne in mind that it is, including the na- 
tional and state sovereignties, limited and regulated by 
written constitutions. The people may amend these 
instruments without resort to a supposed right of rev- 
olution. They, by themselves or authorized agents, ap- 
point the persons by which the trusts of government 
are executed ; the persons so selected, with few ex- 



VI TO THE READER. 

ceptions, hold office for certain prescribed terms of 
time ; during their continuance in office, they cannot 
rightfully transcend the written constitutions under 
and by which, in general terms, their duties are pre- 
scribed, however fascinating or desirable a departure 
therefrom may, at any time, be regarded. 

The security of the American citizens, and of their 
free institutions, is dependent upon a constant, firm, 
and unwavering adherence to this fact ; whenever and 
so far as it is disregarded, danger more or less exten- 
sive must be the result. 

These lectures were read before a popular audience, 
and have been printed by the Institute upon its own 
suggestion. The writer has endeavored to avoid dry 
legal disquisitions, so far as the subject would permit; 
and has deferred to the opinions of others, so far and 
so far only, as they commended themselves by their 
reasons to his judgment. Political economy is only 
another term for jurisprudence. Jurisprudence is the 
science by which the duties of man, in a state of civil 
society, are ascertained and enforced. 

C. B. Goodrich. 



CONTENTS 



LECTURE I. 



The Constitution, departments, and purpose of the system, state and 

national, which constitutes the government of the United States, Page 1 

LECTURE II. 

The external right and duty of the federal government as shown in its 
treaty-making power. — Intervention. — Neutrality the policy of the 
United States. — Xeutral rights, 31 

LECTURE III. 

The external power of the federal government. — Ambassadors. — The 

war-making power. — The acquisition of territory, . . . . G3 

LECTURE IV. 

The legislative department of the federal government. — It is supreme, 
and exclusive of state legislation. — This position considered as applied 
to taxes, commerce, naturalization, bankruptcies, counterfeiting the 
public securities. 101 

LECTURE V. 

The legislative department of the federal government — It is supreme, 

and exclusive of state legislation. — This position considered as applied 
to post-offices and post-roads, — to the progress of science and useful 
arts, — to offences against the law of nations. — Restrictions upon the 
legislative department, 138 



Vlll CONTENTS. 



LECTURE VI. 

The state government. — The purpose and character of its legislation. 

— Within certain limits it is supreme, and exclusive of federal legisla- 
tion or control, 163 

LECTURE VII. 

The state government. — The purpose and character of its legislation. 

— Within certain limits it is supreme, and exclusive of federal control. 

— Restrictions imposed thereupon, 191 

LECTURE Vni. 

The federal and state judicial departments, . . . . .219 

LECTURE IX. 

Revenue. — Tariff. — Free trade. — Public lands. — Territorial govern- 
ments. — Admission of states. — Indian tribes, 249 

LECTURE X. 

The relation which subsists between the federal government and the 
several states. — Between the several states as independent sovereign- 
ties. — Between the citizens of the several states, . . . .273 

LECTURE XL 

Revolution. — Amendment. — The right of instruction. — Nullification. 

— Secession. — State rights, . . ■ 299 

LECTURE XII. 

The dangers and causes of danger incident to the system. — The remedy 

or means of avoidance, 323 



LECTURE I. 



THE CONSTRUCTION; DEPARTMENTS, AND PURPOSE OF THE SYSTEM, STATE AND 
NATIONAL, WHICH CONSTITUTES THE GOVERNMENT OF THE UNITED STATES. 



The citizens of the United States are somewhat con- 
versant with the science of political economy. It is 
essential to the maintenance of their rights, to a proper 
discharge of their duties, that a knowledge of these 
rights, these duties, should be encouraged and increased. 
All men have certain essential and unalienable rights.* 
Whenever, or wherever, they reside in proximity with 
each other, clothed with these natural rights, a limitation 
upon their exercise must exist, to prevent collision. It 
is certain that an individual, in a state of society, or of 
proximity with a neighbor, must exercise these rights so 
as not to destroy or impair those which appertain to 
every other individual. Hence the necessity and origin 
of government, and the recognition of the legal position 
which requires every person so to use his rights as not 
to destroy or impair the rights of another. The end of 
the institution, maintenance, and administration of gov- 
ernment is, to secure the existence of the body politic ; to 

* Constitution of Massachusetts, Part First, Art. I. All men are born free 
and equal, and have certain natural, essential, and unalienable rights; among 
which may be reckoned the right of enjoying and defending their lives and 
liberties ; that of acquiring, possessing, and protecting property ; in fine, that 
of seeking and obtaining their safety and happiness. 

1 



Z THE SCIENCE OF GOVERNMENT. 

protect it ; and to furnish the individuals who compose it 
with the power of enjoying in safety and tranquillity 
their natural rights, and the blessings of life * In other 
words, the object of government is, to sustain and enforce 
limitations upon the supposed, upon the actual, natural 
rights of the individuals, upon which it operates, so far as 
a limitation of such rights is essential to the existence of 
well regulated civil society. Whenever individuals, pass- 
ing in opposite directions upon the same public way, 
meet, each with equal right, they pass on opposite sides. 
Force is the basis upon which the power of every gov- 
ernment has reposed, and ever must repose for its security. 
Government must have in its construction and within its 
control, capacity or power commensurate with any and 
every contingency to which it may be exposed. Nothing 
less is adequate to the accomplishment of the purpose 
sought to be attained by the establishment of govern- 
ment. This position is true of the system under which 
we live, notwithstanding we are, more or less, accustomed 
to think and to act as though we had no government, 
and no occasion for its restraining influence. The main- 
tenance of private right, which is the purpose and end 
of government, is, in this country, to a great extent, and 
so far as the daily and ordinary relations of life are con- 
cerned, obtained through the instrumentality of the 
judiciary, whose noiseless step is perceived only by those 
who are the immediate parties to its adjudications. In 
this department, force coextensive with the entire power 
and strength of the government under which it acts is 
always found within its power and control. The most 
important inquiry which can arise in relation to any 
system of government is, — what quantity of power shall 
be confided — how and by whom shall it be exercised. 

* Constitution of Massachusetts — Preamble. 



THE SCIENCE OF GOVERNMENT. 6 

A supposed solution of this question was discovered by 
those who established our system ; and it constitutes the 
difference between it and other systems. This solution 
consists in an assumption, that the least quantity of power 
which can with safety be relied upon as adequate to a 
maintenance of private and of public right, should be 
conceded; that the direction and manner of using this 
power should be denned in written constitutions, having 
to some extent a permanent and fixed character; that 
the persons or departments intrusted with its exercise 
should be designated by, and made responsible to, the 
people, for a proper discharge of the trusts reposed in 
them; that a well educated people are competent to 
determine the quantity of power to be conferred, the 
time and manner in which, and the departments and per- 
sons by which and by whom it may be exercised. 

Our system of government is the result of this 
assumption ; thus far, its soundness or accuracy has not 
been disproved or impeached. So long as its main 
foundation, the intelligence and integrity of the people, 
shall continue, no reasonable cause of apprehension or 
danger can arise. Whenever this foundation shall be 
broken, the system will go down — not because it does 
not possess or contain in its construction a grant of power, 
a grant of force adequate to its support, but because, 
whenever a majority of the people shall lose their intel- 
ligence and integrity, the persons who may, at the time, 
be charged with the duty of performing and executing 
the trusts of government, will be no better, no more hon- 
est, no more intelligent than will be those by whom they 
shall have been elected. It must therefore be conceded, 
that the form of government which may be adopted in 
any country, with any rational hope of success, must be 
in accordance with the habits, circumstances, and degree 
of civilization attained, of and by the people for whom it 



4 THE SCIENCE OF GOVERNMENT. 

is designed, and npon which it is to operate ; that the 
quantity of power to be conferred may, within certain 
limits, be diminished in the same ratio, as intelligence, 
education, and integrity shall be increased. It must also 
be conceded, that the strength of our system, having its 
origin in the assumption to which reference has been 
made, does not depend so much upon its form, upon its 
constitutional capacity for self-preservation, as it does 
upon the moral power which is derived, and can be 
derived only from a correct, calm, and disingenuous pub- 
lic opinion. In ancient Greece, it was an admitted and 
received maxim, that, " to the king and to the common- 
wealth nothing is unjust which is useful."* In the sense 
in which the maxim was understood, it had no foundation 
in morality or reason. In our political theory, nothing is 
useful which is unjust. I propose to examine this theory 
in some of its general features — to induce you to make, 
and, if possible, to aid you in an examination of it. I 
do not expect to present for your consideration any sub- 
ject which has not been discussed and examined. I shall 
use the language and sentiments of others whenever 
either suit my purpose. If, in some instances, I present 
views which may be regarded as peculiar or erroneous, 
their peculiarity and incorrectness may be easily detected. 
Our system of government is composed of two distinct, 
sovereign jurisdictions, each limited by a certain and pre- 
scribed boundary, beyond which it cannot pass. Each 
sovereignty, although limited within its limit, is supreme ; 
the limit and boundary of each are established by 
written constitutions. These sovereignties are known, 
the one as a national, the other as a state government ; 
each operates upon the same territory, upon the same 
persons, upon the same things. The rights, duties, and 

* Wheaton, Law of Nations, p. 5. 



THE SCIENCE OF GOVERNMENT. D 

relations of every citizen are defined, regulated, and 
upheld, in some particulars and at some times by the 
former, in other particulars and at other times by the 
latter. The purpose of this double power, of this estab- 
lishment and construction of an empire within an empire, 
in its most comprehensive aspect, is individual. It is to 
secure to the citizen protection in his person, character, 
and property. The national, designated the federal gov- 
ernment, was proposed and designed to protect the citizen 
in the enjoyment of his life, liberty, and estate from any 
and every molestation or injury which might arise from 
the interference of foreign nations or their citizens, or 
of one state or its citizens with the internal arrangement 
and affairs of another; to regulate, in fact, the inter- 
course of the citizens of the several states with the citi- 
zens of every other state, and with the citizens and 
governments of foreign nations. 

The state government was designed to protect its 
citizens in their intercourse with each other and within 
the state, to which they belong. This government 
reaches, if I may so say, nearer home, and operates upon 
and controls our rights, our duties, and obligations as 
members of society. It is the shield and the arbiter of 
our common and daily duties. Each of these govern- 
ments is a government of law. The liberty of which 
we boast the enjoyment is regulated by law, and when- 
ever it shall cease to be so regulated it will cease to be 
liberty. So long as you keep this truth in mind, and 
adhere to it, your institutions will withstand all assaults, 
external and internal, — they will enable you to reach 
the highest point of civilization, — they will enable you 
to make good the assumption of your fathers, that an 
intelligent, well educated people are competent to estab- 
lish their own system of government, are competent to 
discharge its trusts. 



6 THE SCIENCE OF GOVERNMENT. 

Our country comprehends thirty-one states — thirty- 
one governments — each occupying a prescribed and 
well defined territory, which, so far as any other state is 
concerned, with some few exceptions, is exclusively its 
own. These states, in many particulars, are foreign to 
each other. The people of these several states are citi- 
zens of the state to which they belong, and within which 
they reside; they also have the capacity, the right to 
become citizens, at their election, of any other of the 
several states ; they are also citizens of the federal gov- 
ernment. The constitution of the United States is the 
charter of the national government. It contains, defines, 
and prescribes, in general terms, the system of govern- 
ment by which we are politically known to foreign 
nations, by which we are protected from their control, 
and by which the citizens of the several states, in their 
intercourse, are regulated. The government thus estab- 
lished is not a government of states, it is a government 
of the people. It was established, not by the states act- 
ing as sovereignties, but by the people. The instrument 
contains a distinct enunciation of this position. It says, 
" We, the people of the United States, in order to form a 
more perfect union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this 
constitution for the United States of America." * Not- 
withstanding this declaration, so clear and explicit in its 
terms, its truth and propriety have been questioned, and 
efforts have been made to resist, to pervert its plain 
import, — all of which have failed. As the states which 
compose the Union have increased in number, and as 
they may increase, — as the interests of different localities 

* Constitution of United States — Preamble. 



THE SCIENCE OF GOVERNMENT. 7 

become more diverse, — the importance of this position, 
which is the foundation of the system, will be more mani- 
fest, and an adherence to it is essential to the success of 
the constitution. The late Chief Justice Marshall, in 
delivering a judgment of the Supreme Court of the 
United States,* incidentally considered and stated the 
mode in which the constitution of the United States had 
been adopted, and its character as a government of the 
people. He says: "The convention which framed the 
constitution was elected by the state legislatures. But 
the instrument, when it came from their hands, was a 
mere proposal. It was reported to the then existing 
congress (which had been organized under the then 
existing articles of confederation) of the United States, 
with a request, that it might be submitted to a convention 
of delegates chosen in each state by the people thereof, 
under the recommendation of its legislature, for their 
assent and ratification. This mode of proceeding was 
adopted ; and by the convention, by congress, and by the 
state legislatures, the instrument was submitted to the 
people. They acted upon it in the only manner in 
which they can act safely, effectively, and wisely on such 
a subject, by assembling in convention ; — they assembled 
in their several states ; — when the people act, they must 
act in their states. The measures they adopt do not, on 
that account, cease to be the measures of the people, or 
become the measures of the state governments. From 
these conventions (of the people) the constitution derives 
its whole authority. The government proceeds directly 
from the people ; is ordained and established in the name 
of the people ; — the assent of the states in their sovereign 
capacity is implied in calling a convention, and thus sub- 
mitting the constitution to the people. But the people 

* McCullock v. The State of Maryland, 4 Wheat. Rep. 316. 



8 THE SCIENCE OF GOVERNMENT. 

were at perfect liberty to accept or reject it ; and their 
action was final. It required not the affirmance of, and 
could not be negatived by, the state governments. The 
constitution, when thus adopted, was of complete obliga- 
tion, and bound the state sovereignties. The government 
of the Union, then, is emphatically and truly a govern- 
ment of the people. In form and substance it emanated 
from them. Its powers are granted by them and for 
their benefit. This government is acknowledged by all 
to be one of enumerated powers ; — the principle, that it 
can exercise only the powers granted to it, is now uni- 
versally admitted. But the question, respecting the 
extent of the powers actually granted, is perpetually 
arising, and will probably continue to arise so long as our 
system shall exist. The government of the United States, 
then, although limited in its powers, is supreme ; and its 
laws, when made in pursuance of the constitution, form 
the supreme law of the land, any thing in the constitu- 
tion or laws of any state to the contrary notwithstand- 
ing." In a more recent case, the same eminent jurist 
affirmed these views, and again says : " The constitution 
(of the United States) was ordained and established by 
the people of the United States, for themselves, for their 
own government, and not for the government of the 
individual states. Each state established a constitution 
for itself, and in that constitution provided such limita- 
tions and restrictions on the powers of its particular 
government as its judgment dictates. The people of the 
United States framed such a government for the United 
States as they supposed best adapted to their situation, 
and best calculated to promote their interests. The 
powers conferred upon the federal government are to be 
exercised by itself; — the limitations of power contained 
in the instrument, unless the contrary expressly appears, 
are applicable to the government therein created. The 



THE SCIENCE OF GOVERNMENT. 9 

states in their several constitutions imposed such restric- 
tions on their respective governments as their own wis- 
dom suggested — such as they deemed most proper for 
themselves/' * 

From these extracts, and from the short general view 
presented, it results that certain power, for certain para- 
mount purposes no less important, has been confided to 
the state government by the people — the source and 
fountain of all power which either sovereignty, state and 
national, enjoys. All power and authority not so con- 
ferred resides in and with the people unrestrained, 
which they may exercise at will, exercising it so as not 
to weaken or in any way render unavailing and useless 
the powers surrendered. Individuals of other countries 
do not perceive how two jurisdictions can exist without 
conflict. Some of our own statesmen have occasionally 
feared collision. If conflict shall arise, it will result, not 
from the deficiencies or incompleteness of the system, 
but from a disposition, on the part of those who admin- 
ister it, to lessen and detract from the rightful power and 
province of the one sovereignty, so as thereby, in fraud 
of the system, to build up and elevate the other. 

This division of power is the source and secret of our 
security. As an illustration of the theory of our system 
a single exercise of power, in and by each sovereignty, 
may be stated, from which it will be perceived, that no 
danger or cause of conflict can exist. The federal gov- 
ernment has the exclusive power to make treaties, to 
declare war. The state government has the exclusive 
power to prescribe the formalities with which a will or 
other testamentary paper shall be executed; to say 
how title to estates, real or personal, within its limits 



* Barron v. The Mayor and City Council of Baltimore. 7 Peter's Sup. Ct. 
Rep. 243. 



10 THE SCIENCE OF GOVERNMENT. 

shall be acquired. These powers are not inconsistent, 
and the exercise of them by the different sovereignties to 
which they are confided cannot produce collision. These 
instances are understood ; others more difficult of solution 
and more complex have arisen and must arise. They 
have been, and are to be controlled upon the same prin- 
ciple as the cases stated, with the addition of two well 
established propositions, — one of which is, whenever 
two jurisdictions, political or judicial, have concurrent 
power and authority, the one which first attaches upon 
its object, be it person, thing, or contract, cannot right- 
fully be displaced or impeded, until its rightful and legal 
purpose shall have been accomplished, until its power 
shall have been exercised, or voluntarily surrendered. 
The other is, that the constitution of the United States, 
and the laws and treaties of the United States, made 
in conformity with the constitution, constitute the 
supreme law of the land, and no state legislation can 
control it. It follows, if each sovereignty shall be con- 
tent with its own trusts, each performing its peculiar 
duties, and asserting in good faith and in a spirit of 
comity its own rights, the two sovereignties will 
together constitute, as they were designed to constitute, 
one system. The right of sovereignty exercised by the 
federal government may be designated as external and 
occasional, although it is, in some particulars, internal and 
constant ; that of the state government, as internal, and 
within its province, without interruption. If these rights 
are exercised by the federal and state sovereignties, 
within their respective limitations, they cannot come in 
conflict. And when a conflict occurs, the inquiry must 
be, which is the paramount law, ■ — this must depend upon 
the supremacy of the power by which the law, the sub- 
ject of the conflict, was enacted. The federal govern- 
ment is supreme in the exercise of powers delegated to 



THE SCIENCE OF GOVERNMENT. 11 

it ; but beyond this, its acts are unconstitutional and void. 
The acts of the several states are void when they do 
that which is inhibited to them, or exercise a power 
which the people have exclusively delegated to the fed- 
eral government. With an exception of the powers 
delegated to the federal government, the several states, 
resting and acting upon their original sovereignty, exer- 
cise their powers over every thing connected with their 
social and internal condition. A state regulates its 
domestic commerce, the transmission of estates, real and 
personal, and acts upon all internal matters which relate 
to its moral and political welfare. The state govern- 
ment regulates the contracts of its citizens, provides for 
their execution and performance, restrained only in this 
exercise of authority, by an inhibition, found in the con- 
stitution of the United States, " that no state shall pass 
any law impairing the obligation of contracts." Over 
these subjects the federal government has no power — 
they appertain to the state sovereignty exclusively. The 
powers of the federal sovereignty are equally exclusive.* 
Whenever either jurisdiction shall be supposed to have 
transcended its appropriate limit, in matters of private 
concernment, those persons, the rights of which are 
thereby controlled or diminished, may correct the error, 
by recourse to the judicial department, state or national, 
as the one or the other may have jurisdiction. Each of 
the sovereignties, state and national, are divided into 
departments, through the instrumentality of which their 
several trusts are performed : these departments are 
designed to operate as checks upon each other. The 
federal sovereignty has three, — the legislative, the judicial, 
and the executive. The creation of these departments, 
the duties appertaining to each, and the mode in which 

* The license cases, 5 How. Rep. 588. Opinion of Mr. Justice McLean. 



12 THE SCIENCE OF GOVERNMENT. 

they execute the powers conferred, may be learned by 
an examination of the constitution of the United States. 
The legislative power of the federal government is vested 
in a congress of the United States, which consists of a 
senate and house of representatives. This department, 
in the exercise of the authority or grant of jurisdiction 
with which it is invested, is subject to a qualified right of 
veto conferred upon the executive. The house of rep- 
resentatives is composed of members chosen every second 
year by the people of the several states. No person 
shall be a representative who shall not have attained to 
the age of twenty-five years, and shall have been seven 
years a citizen of the United States, and, at the time of 
his election, shall be an inhabitant of the state in which 
he shall be chosen. The representatives are, from time 
to time, apportioned among the several states according 
to their respective numbers, which shall be determined 
by adding to the whole number of free persons, including 
those bound to service for a term of years, and excluding 
Indians not taxed, three-fifths of all other persons. To 
ascertain the number of representatives, an enumeration 
of the people is made every ten years. When vacancies 
occur in the representation from any state, they are 
filled by an election for the unexpired term of two 
years* The senate of the United States is composed of 
two senators from each state, chosen by the legislature 
thereof for six years. No person can be a senator who 
shall not have attained to the age of thirty years, and 
shall have been a citizen of the United States for nine 
years, and at the time of his election an inhabitant of 
the state for which he shall be chosen. The presiding 
officer of this body is not a member, but is the vice- 
president of the United States, although in the event of 



* Constitution of United States, art. i, sec. 2. 



THE SCIENCE OF GOVERNMENT. 13 

his absence, inability to discharge the duty, or death, a 
member of the body is chosen as presiding officer for the 
time being.* The times, places, and manner of holding 
elections for senators and representatives shall be pre- 
scribed, in each state, by the legislature thereof; but the 
congress may, at any time, by law make or alter such 
regulations, except as to the places of choosing senators.*]* 
The senators chosen immediately after the adoption of 
the constitution, were, in accordance with the instrument, 
divided into three classes, the first of which went out of 
office at the end of two, the second at the end of four, 
the third at the end of six, years. The effect of which 
classification is, that thereafter and now, one third of the 
members go out at the end of every two years. The 
congress, of which I have given the component parts, is 
required by the constitution to hold at least one session 
annually. It may be convened more frequently by the 
executive, if the public interest shall require. The con- 
struction and organization of this body exhibits extraor- 
dinary capacity, great judgment, an accurate knowledge 
and comprehension of an enlarged, liberal political 
economy. It regards the popular will, it avoids the evils 
which might result from any sudden excitement, caprice, 
passion, or prejudice on the part of the people. It 
regards the dignity and political equality of the several 
states. An analysis of the provision to which I have 
referred will show the delicacy and distinctness with 
which these different elements have been regarded and 
blended. The representative is chosen by a direct ballot 
of the people. His term of office is short, so that 
every two years he returns to the people a private citi- 
zen, and may again be elected or not as the interest and 
judgment of his constituents may require. The senator 

* Constitution of United States, art. i, sec. 3. f Ibid. art. i, sec. 4. 



14 THE SCIENCE OF GOVERNMENT. 

is chosen, not by a direct suffrage of the people, but by 
the state legislature of the state from which he is elected. 
His term of service, his age, is greater. Pie is not so near, 
not so dependent upon the direct act of the people as the 
representative. It is presumed, therefore, that he will be 
less solicitous of his own immediate personal popularity, 
— that he will trust in this particular, to the calm, dis- 
passionate judgment of his countrymen, acting upon a 
full survey of his course uninfluenced by any sudden, ill- 
advised outbreak of popular feeling. The senators of 
each state, as members of the senate, stand upon equal 
terms with those of every other state, so far as political 
power and authority is concerned, without reference to 
the population, wealth, or local position of the state 
which they represent. In this particular, the several 
states exercise an equal power and influence. The pre- 
siding officer of the senate being the second highest 
officer in the executive department, (the vice-president,) 
elected by the suffrages of a majority of the people of 
the several states, having no vote except the senators 
shall be equally divided, having no right to discuss the 
measures under consideration, will, it is presumed, be 
calm, firm, and uninfluenced in the exercise of his func- 
tions by any sectional consideration * 

From this survey of the legislative department, it is 
difficult to perceive how or wherein greater or more 
effectual precaution could have been exercised to pre- 
vent arbitrary, oppressive, or sectional legislation ; espe- 
cially is it to be so regarded when we consider that the 
two bodies of which congress is composed act separate 



* Constitution of the United States, art. i. sec. 3. There is no express 
provision that the vice-president shall not discuss measures before the senate ; 
but as he is not a member of the body, he has no right, except to preside over 
the deliberations of the senate, and to vote in the event of an equal division of 
the senators voting. 



THE SCIENCE OF GOVERNMENT. 15 

from, and independent of, each other. In addition to 
these provisions, the qualified power of disapproval, with 
which the executive has been invested, may be regarded 
as affording additional security against unwise legislation. 
The house of representatives was originally composed 
of sixty-five members, arbitrarily fixed and distributed 
among the thirteen states. This was designed to enable 
the government to go into operation and perform its 
duties until an enumeration of the inhabitants could be 
made, which was required to be made within three years. 
As the law now is, every state is entitled to at least one 
representative. With this qualification, the members 
cannot exceed one for every thirty thousand inhabitants* 
The number of senators cannot be enlarged or diminished 
beyond two from each state.f Each house is the exclu- 
sive judge of the election and qualification of its own 
members, — each prescribes its own rules of action. J The 
members are paid from the treasury of the United States, 
— they are privileged from arrest in all cases, except 
treason, felony, and breach of the peace, during their 
attendance at the session of their respective houses, and 
in going to and returning from the same. For any 
speech or debate in either house, they shall not be ques- 
tioned in any other place. § This construction of the 
legislative department manifests a design to uphold the 
power and authority of the people, against corrupt and 
oppressive government, against corrupt and unworthy 
legislators. Equally manifest is an intent to protect the 
people, to some extent, from themselves. It also exhibits 
an omission of any express provision by which the gov- 
ernment of the United States may uphold itself, in a 
certain contingency, independent of any action by the 



* Constitution of United States, art. i, sec. 2. f Ibid. art. i, sec. 3. 

X Ibid. art. i, sec. 5. § Ibid. art. i, sec. 6. 



16 THE SCIENCE OF GOVERNMENT. 

several states. Congress may effectually secure the con- 
tinuance of the house of representatives by its own 
action, if the several states do not exercise the power 
confided to them in this respect; no such power is, 
unless by implication, conferred in relation to the senate. 
If every state in the Union should, at the same time, and 
for six consecutive years, decline to choose senators, an 
integral part of the federal government would become 
vacant. This omission was the subject of discussion 
before the constitution was adopted. It did hot, however, 
create any alarm in the minds of those who advocated 
an adoption of the system, although it was regarded 
by Alexander Hamilton as an evil, but as an evil which 
could not have been avoided, without excluding the 
states, in their political capacities, from a place in the 
organization of the national government* The second 
department (adopting a classification resulting from the 
nature and the order of, and in which, the duties of the 
different departments are to be performed) is the judicial. 
The constitution provides, that the judicial power of the 
United States shall be vested in one supreme court, and 
in such inferior courts as the congress may, from time to 
time, order and establish. The judges, both of the 
supreme and inferior courts, shall hold their offices during 
good behavior, and shall, at stated times, receive for their 
services a compensation which shall not be diminished 
during their continuance in office, f The judicial power 
shall extend to all cases, in law and in equity, arising 
under the constitution, the laws of the United States, 
and treaties made, or which shall be made, under their 
authority ; to all cases affecting ambassadors, other public 
ministers, and consuls ; to all cases of admiralty and mar- 



* The Federalist. Lecture No. 59. 

f Constitution of United States, art. iii, sec. 1. 



THE SCIENCE OF GOVEKNMENT. 17 

itime jurisdiction ; to controversies to which the United 
States shall be a party ; to controversies between two or 
more states, between citizens of different states, between 
citizens of the same state claiming lands under grants of 
different states, and between a state, or the citizens 
thereof, and foreign states.* 

In all cases affecting ambassadors, other public minis- 
ters, and consuls, and those in which a state shall be a 
party, the supreme court has original jurisdiction. In all 
the other cases the supreme court has appellate jurisdic- 
tion, with such exceptions and under such regulations as 
the congress shall make. The judicial power of the 
United States is limited by the duties and rights of the 
federal sovereignty, of which it is an important part or 
element. The enumeration of its powers excludes its 
action upon any matter dependent for decision upon the 
municipal law of an individual or particular state ; con- 
troversies between citizens of the same state, with a single 
exception, are not within its jurisdiction, unless they are 
dependent upon the constitution, upon some law or right 
of, or under the federal sovereignty. Controversies be- 
tween citizens of the same state, except as already stated, 
are to be determined by the action of the judicial tribu- 
nals of the state in which they may arise or be litigated. 
With equal distinctness, rights arising under the consti- 
tution, under treaties, under the laws of the United States, 
the rights of ambassadors and of other public ministers, 
admiralty and maritime rights, suits in which the United 
States is a party, are to be exclusively adjudged by the 
federal jurisdiction, through the instrumentality of its 
judiciary. 

The construction of this department exhibits several 



* Constitution of United States, art. iii, sec. 2. Amendments of Constitu- 
tion, art. xi. 

3 



18 THE SCIENCE OF GOVERNMENT. 

prominent purposes sought to be accomplished. These 
are, that the foreign relations of the United States should 
be free from any control or supervision of any state sove- 
reignty; that the treaties and laws of the federal 
sovereignty, individual right derived from, or under them, 
should be construed and enforced by itself. It exhibits 
the truth and power of the declaration so often made by 
the United States to all other nations, — " although many, 
we are one." It presents also a clear and undoubted 
acknowledgment of the independence and supremacy 
of the several states, and of their laws, as a general pro- 
position, in all local matters. It regards the sovereignty 
of the several states as applicable, with one or two limi- 
tations, to all matters to which it had extended before 
the adoption of the federal constitution, except those 
growing out of our foreign relations and intercourse, and 
the relation of the several states to and with each other. 
The arrangement by means of which the judicial power 
thus conferred is carried into effect, consists of the 
supreme court of the United States, of circuit courts, 
of district courts, of commissioners, marshals, and such 
officers as the courts may appoint to aid them in the 
investigations, and in the exercise of their respective 
jurisdictions. The supreme court of the United States is 
now composed of nine judges ; it holds an annual session 
at Washington, the seat of the national government. 
The circuit courts correspond in number with the num- 
ber of the states ; the circuits correspond in number with 
the number of judges of which the supreme court, for 
the time being, shall be composed, the limits of which, 
territorially, are defined by law, and each circuit now 
comprehends three or more states. The district courts 
exceed the number of states, as some of the states are 
divided into two judicial districts, to avoid an inconve- 
nience which might otherwise result from extent of 



THE SCIENCE OF GOVERNMENT. 19 

territory. The circuit court in each state is holden by a 
judge of the supreme court of the United States, and by 
the district judge of the district within which the circuit 
court is so holden, and provision is made by law, that the 
circuit court may, under some circumstances, be held by a 
district judge. Formerly, any one of the judges of the 
supreme court might preside over any circuit court 
within the United States ; now, the judges are allotted 
each to a prescribed circuit. Every district court is 
holden by a district judge, ordinarily by the judge 
appointed for the district over which he presides, although, 
in some instances, a district judge may be called from one 
district to another. From this statement it will be per- 
ceived that the courts of the United States are of three 
distinct classes or divisions ; — the judges of the courts of 
the United States form only two classes or divisions ; — 
they are all appointed by the president of the United 
States, by and with the advice and consent of the senate; — 
they may be selected from any part of the United States, 
although they are ordinarily selected from the circuit 
within which they are allotted to preside. I have thus 
stated substantially the outline of the judicial depart- 
ment of the United States. It is not my purpose to pre- 
sent, in relation to any of the departments, all the parti- 
culars of which they are composed, or to which they 
extend, but it is to present a general view, such as will 
enable you to reflect upon the system, to discover its 
purpose, its adaptation to its purpose, — to judge of the 
accuracy of the suggestions in relation to it which may 
be made. In one particular the judicial department is 
distinguishable from every other department. 

Its officers, the judges, in their appointment are more 
remotely and indirectly dependent upon the people ; in 
their term of office they are less dependent upon the 
people than any other officers. This feature was made 



20 THE SCIENCE OF GOVERNMENT. 

a ground of objection to an adoption of the system, 
although it was in conformity with the plan of many 
of the state constitutions, almost all of which contained 
similar provisions as to the tenure of judicial office. In 
reply to this objection, it was said by a distinguished 
jurist* that "the standard of good behavior for the con- 
tinuance in office of the judicial magistracy, is certainly 
one of the most valuable of the modern improvements 
in the practice of government. In a monarchy, it is an 
excellent barrier to the despotism of the prince ; in a 
republic, it is a no less excellent barrier to the encroach- 
ments and oppressions of the representative body. And 
it is the best expedient which can be devised in any gov- 
ernment to secure a steady, upright, and impartial admin- 
istration of the laws. Whoever attentively considers the 
different departments of power must perceive, that in a 
government in which they are separated from each other, 
the judiciary, from the nature of its functions, will always 
be the least dangerous to the political rights of the con- 
stitution, because it will be least in a capacity to annoy 
or injure them. The executive not only dispenses the 
honors, but holds the sword of the community ; the leg- 
islature not only commands the purse, but prescribes the 
rules by which the duties and rights of every citizen are 
to be regulated; the judiciary, on the contrary, has no 
influence over either the sword or the purse, no direc- 
tion either of the strength or of the wealth of the 
society, and can take no active resolution whatever. It 
may truly be said to have neither force nor will, but 
merely judgment, and must ultimately depend upon the 
aid of the executive arm for the efficacious exercise even 
of this faculty." This course of reasoning, which was 
approved by the most eminent, learned, and patriotic 

* The Federalist, Lecture No. 78. 



THE SCIENCE OF GOVERNMENT. 21 

men in the country at the time it was used, has since 
been doubted and disapproved. In many of the several 
states, at this time, the judicial tenure of office within 
the state is a term of years. Which system is the best, 
it is not my province to determine. It cannot, probably, 
be determined until we have had more experience of the 
new theory. The advocates of each have the same pur- 
pose, which is, an independent, honest, learned, and 
upright judiciary. Without a judiciary possessing such 
qualifications, private and individual right cannot be sus- 
tained for an hour. When private right fails in its security 
and protection, public right, which is only the general 
name applied to the collection of individual rights, will 
exist only in theory. The judicial department, therefore, 
although the weakest, in its unaided power of self-pre- 
servation, is the most important check which the people 
can have as a reliance against, and as a protection from, 
the encroachments of other departments. Like the main 
spring in a watch, it may not improperly or inaccurately 
be described as the power by which the legal capacity of 
all persons, and other departments, is determined. 

I proceed to the third department of the federal sys- 
tem, the executive. This power is vested in a a Presi- 
dent of the United States of America." He holds his 
office for the term of four years.* Provision is also made 
for the election of a vice-president, who holds office for 
the same term, is the presiding officer of the senate, and 
" in case of the removal of the president from office, or 
of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall 
devolve on the vice-president." In the event of a 
vacancy in both these offices, or inability in both officers 
to perform the duties, congress has power to determine 

* Constitution of the United States, art. ii, sec. 1. 



22 THE SCIENCE OF GOVERNMENT. 

what officer shall then, for the time being, act as president. 
No person except a natural born citizen, or a citizen of 
the United States at the time of the adoption of the 
federal constitution, is eligible to the office of president ; 
neither shall any person be eligible, who shall not 
have attained the age of thirty-five years, and been 
fourteen years a resident within the United States. The 
mode of election of president and vice-president is pre- 
scribed in the constitution; they are not elected by a 
direct intervention or ballot of the people. Each state 
shall appoint (when an election shall occur) in such man- 
ner as the legislature thereof may direct, a number of 
electors, equal to the whole number of senators and rep- 
resentatives to which the state may be entitled in the 
congress. But no senator or representative, or person 
holding an office of trust or profit under the United 
States, shall be appointed an elector. The time and 
mode at and in which the electors shall exercise their 
trust, is regulated by law. If they fail to make an elec- 
tion of president, the house of representatives shall make 
the election from one of the three highest candidates. 
If no election of vice-president shall be made by the 
electors, the senate make the choice from the two highest 
candidates.* This mode of making an election of the pre- 
sident was resisted and supported, on the one and the other 
side, by able writers before the constitution was adopted. 
In the election, the people are required to act indirectly, 
through electors especially chosen for the trust. In sup- 
port of the theory it was urged, that the immediate 
election should be made by men most capable of analyz- 
ing the qualities adapted to the station, and acting under 
circumstances favorable to deliberation, and to a judicious 
combination of all the reasons and inducements that 

* Constitution of United States. Amendments, art. xi. 



THE SCIENCE OF GOVERNMENT. 23 

were proper to govern their choice. A small number of 
persons, selected by their fellow-citizens from the general 
mass, will be most likely to possess the information and dis- 
cernment requisite to so complicated an investigation* 
Although the executive department is vested by the con- 
stitution in a single person, the president, who is clothed 
with power and authority supposed to be adequate, the 
congress have established sundry subordinate departments, 
by the aid and instrumentality of which his duties are to 
some extent performed. These departments are now seven 
in number ; the secretary of state, of the treasury, of the 
interior, of war, of the navy, the postmaster-general, and 
the attorney-general. These officers constitute the cabinet, 
the legal advisers of the executive. They are not responsi- 
ble for the acts of the government in the same sense and to 
the same extent as the members of the cabinet of the 
British crown are practically responsible for the acts of the 
crown. The president of the United States is alone 
responsible for the fidelity with which the executive 
department is conducted. He is therefore vested with 
authority to select his advisers, subject to the consent 
and approval of the senate, which is always, or should 
always be given, unless some well founded cause of objec- 
tion, other than mere political considerations, of a party 
character, exists to prevent a confirmation. To render 
the executive at all times free from embarrassment in the 
exercise of the duties with which he may be charged, he 
exercises an uncontrolled power of removal over his 
cabinet officers; they hold office subject to his pleasure. 
Their only security in office is derived from a faithful 
discharge of duty. Their title to the confidence of the 
community is in proportion to the ability and integrity 
with which their trusts are performed. I have exhibited 



* The Federalist, No. 68. 



24 THE SCIENCE OF GOVERNMENT. 

the general construction and character of the federal 
government as a system, independent of any state gov- 
ernment. The same prominent features, and the same 
principles of political science which are exhibited in this 
system, are to be found in the several state constitutions. 
Each state government has a written constitution, by 
which its powers, duties, and rights are defined ; and 
they are to every substantial purpose the same, although 
provisions are found in some of these, which are not in 
others. Many of these instruments are preceded by, or 
contain bills of right, which are a collection or state- 
ment of some of the rights and privileges, which, it is 
supposed and assumed, are essential and unalienable; 
they contain an enunciation of some of the principles of 
government which are regarded liberal and free. They 
are similar to the charters or declarations of right which 
the English people, from time to time, have obtained 
from the crown, but are more extensive. In some of the 
states, religious tests and property qualifications exist, 
which are disappearing, and will soon give way to the 
popular feeling of dislike. In every state, I believe, the 
law of entail, by which land descends in a particular line, 
to the exclusion of all other branches, has been abro- 
gated, — the effect of which has been in favor of liberty 
and the rights of the people. The acquisition of land is 
open and easy to every citizen who has ordinary indus- 
try and economy. The effect of the recognition of a 
right so dear to every man, upon civilization, upon the 
well being of society, cannot be stated in terms too broad 
or comprehensive. The purpose of the state govern- 
ment, as already stated, is to secure private right, to 
regulate the details and obligations of the citizen in a 
state of society, to operate upon the daily, the domes- 
tic conduct and pursuits of the people. The action of 
the state government is more constant, more visible, if 



THE SCIENCE OF GOVERNMENT. 25 

I may so say, and is nearer home than that of the fede- 
ral government was designed to be, or can be. The 
territory over which the government of any particular 
individual state is extended, is not extensive ; as a conse- 
quence its interests and caj>abilities are not diverse, and 
they are easily guarded and rendered available. To 
accomplish its purpose, each state government is divided 
into three departments, the legislative, the judicial, and 
the executive ; each of which is organized substantially 
the same, and performs its functions in a manner simi- 
lar to the mode in which similar departments in the fede- 
ral government are constituted and perform their duties. 
In each government, state and national, the right to trial 
by jury, under certain restrictions and limitations, which 
the most intelligent and patriotic citizens of the country, 
heretofore, and now have approved and do approve, has 
been asserted and recognized in ample terms. In many of 
the states, the judicial tenure of office has been changed by 
provisions which make the judges elective by the people 
for a term of years. The effect of this change must be 
determined, as I have already said, at some future time. 
If found to accomplish its purpose, it will be adhered to 
and extended ; if it shall operate to weaken and to lessen 
the independence and learning of the judges, the people 
will perceive it, and as a matter of safety will return to 
the original theory. 

The system, of which I have endeavored to present an 
outline, is not a democracy ; it is not a government 
administered from day to day, by the direct personal 
agency of the people. It is a republic, a government 
which the people, upon which it operates, established ; 
they retain the power, under certain checks and limita- 
tions, designed to prevent impulsive action, to change its 
form by amendment; they elect some of the officers by 
direct personal ballot; they elect others through their 

4 



26 THE SCIENCE OF GOVERNMENT. 

agents. Every officer in the state and in the federal 
government, holds his place by the power and authority 
of the people, exercised more or less direct. When 
elected, he continues for the term prescribed by law. 
Every officer is, in contemplation of law, regarded as a 
trustee, charged with the performance of certain duties, 
the execution of certain trusts, which are to be performed 
and executed in accordance with the several constitutions 
of our system, as the one or the other shall be applicable 
to his place and station, or to the duty to be performed. 
Whenever these instruments are silent, he is to perform 
his duty in harmony and in symmetry with their princi- 
ples, in accordance with his own well considered judgment, 
aided by the suggestions and interests of his constituents, 
aided by all the information in his power, not forgetting 
his duty to his country, to himself. 

The science of government, as exhibited in the institu- 
tions of the United States, may be defined the appli- 
cation of certain principles of political economy, con- 
tained in written constitutions established by the people, 
to the practical administration of the business and 
intercourse of life. An examination of this science, as 
understood in the system under discussion, will lead to 
several prominent conclusions. 

1. The people are and should be the source of all 
legitimate political power. 

2. This power is controlled and regulated in its exer- 
cise and application, by certain written constitutions, 
partaking of a fixed and permanent character, subject to 
change and amendment by the people, when found 
inadequate and insufficient, from any cause, to accomplish 
the purpose designed. 

3. The powers of government are political trusts, to 
be exercised for the benefit and protection of the people, 
and not for the personal advantage or aggrandizement of 
those who exercise them. 



THE SCIENCE OF GOVERNMENT. 27 

4. The protection of private right, the protection of 
public right, which regards with equal favor the person, 
character, and property of every citizen or member of 
the community, is the only legitimate purpose of society. 

5. The means of a substantial and general education 
are open and accessible to the mass of the people. 

The adoption of the federal constitution, by which the 
people of thirteen independent states united for their 
common defence, protection, and welfare, by which the 
political principles or axioms to which reference has 
been made were promulgated, must be regarded as a new 
era in the science of political economy, as the commence- 
ment of a new and enlarged scheme for the civilization 
and advancement of the human family. Its success, its 
triumph, or its defeat will be promoted by your action, 
by your fidelity or want of fidelity, as the case may be. 
If this survey be accurate, I need not remind you that 
the intelligence, the integrity of the people, must be 
regarded as the main foundation of our system. Charters, 
constitutions, and theories of right, of liberty, perfect as 
they may be, beautiful as any production of the human 
intellect can be, will be unavailing and valueless to stay 
or check the downward course of a degenerate and cor- 
rupt people. 

Thus far in our history, I have seen no evidence, from 
which to infer that the American people as a body are 
forgetful or unworthy of the position which they occupy, 
of the duty which their declarations have imposed upon 
them, to maintain and preserve their own rights, to do 
no wrong to the rights of others; in a word, to cultivate 
and encourage that moral courage which knows no fear, 
except the fear of wrong. I mean not to say, that our 
history has not presented, or that it will not present 
angry discussions, that we have not seen, shall not see, 
portions of the people from time to time maddened for 



28 THE SCIENCE OF GOVERNMENT. 

a moment, at some supposed or real infringement of their 
rights. Thus far, as the dews and mist of the morning 
yield to the power and brightness of the noonday sun, 
they have yielded to the sober second thought of the 
people. I might present many instances of the moral 
courage which I have commended. One shall suffice. It 
was exhibited by the late Chief Justice Marshall, whose 
name as a jurist and patriot will ever be remembered. 
Early in his judicial career, he presided at the examina- 
tion and trial of Aaron Burr, charged with treason. The 
political associations and predilections of the judge were 
adverse to those of the party accused. The charge was 
of a character to excite suspicion and prejudice. The 
voice of popular condemnation was audible and distinct 
throughout the country. To these the judge yielded 
not, but administered the law of the land with a firm and 
even hand as he found it. In so doing, he accomplished 
more for the institutions which he had aided to establish, 
than he could have accomplished by directing the execu- 
tion of an hundred traitors. 

I have presented a portraiture, a general outline of the 
construction of our system of government. The deduc- 
tions which may be drawn from this construction of a 
new system of political economy, of political rights, are 
important, and worthy the consideration of every citizen. 
These deductions are : — First. Each and every the fede- 
ral and the state government, the several departments 
by and through which their trusts are performed, are 
limited. Second. The popular will, the voice of the peo- 
ple, indirectly operates upon, and, within certain limits, 
controls the action of the governments and of their 
departments. Third. The people act through the ballot ; 
their will is not, and cannot, if I may so say, be judicially 
ascertained, or rendered available in any other mode. 
They act only through the institutions which they have 



THE SCIENCE OF GOVERNMENT. 29 

created ; their right, excluding the power of revolution, 
is limited in its exercise by the capacity of the institutions 
so established. 

The truth of these positions, the machinery by which 
they are maintained, the result upon ourselves, the effect 
which they have had or may have upon the institutions 
and conduct of nations, with which we have had or may 
have relations of friendship and commerce, will be illus- 
trated in succeeding lectures. 



LECTURE II. 



THE EXTERNAL RIGHT AND DUTY OF THE FEDERAL GOVERNMENT, AS SHOWN IN ITS 
TREATY-MAKING POTTER. — INTERVENTION. — NEUTRALITY THE POLICY OF THE 
UNITED STATES. — NEUTRAL RIGHTS. 



The adoption of the federal constitution constituted a 
new era in the science of political economy. The in- 
ternal character of the institutions of every country, 
although having no extra-territorial force, must and do 
operate, to some extent, upon the character of the institu- 
tions of other countries. The institutions of a country 
are the indices, the result of the character, the habits of 
its people. This influence is not and cannot rightfully 
be exercised by any direct, forcible intervention of one 
country in the affairs of another; it arises from their 
contracts, association, intercourse with each other. The 
right of suffrage, the elective franchise, recognized in all 
our constitutions as the right of the citizen, is a fact or 
principle calculated to excite the fears and doubts, to 
disturb the hopes of foreign governments in which it is 
not recognized, to encourage the hopes of those who 
exercise it ; in fact, it exercises a moral power upon the 
destiny of kingdoms, of people, more potent and effectual 
to the accomplishment of good or of evil, than any other 
single fact can which has occurred in connection with 
our political history. The most essential, the most 



32 THE SCIENCE OF GOVERNMENT. 

important powers and duties of the federal government, 
are external. The articles of confederation adopted by 
the several states before the adoption of the federal con- 
stitution, were supposed to have been inadequate, and 
insufficient to protect the country and its rights from 
foreign interference and aggression. A number of dis- 
tinct states or sovereignties could not so readily unite in 
hostile operations, or command the means for their sup- 
port. The interests of the several states might not be 
influenced in the same manner, or to the same extent ; 
hence the necessity of a more perfect bond of amity, a 
more perfect union, so as thereby to repel and to resist 
every improper intervention with our domestic affairs 
from abroad. The territorial position of the country, 
isolated somewhat from other countries, favored one sys- 
tem so far as foreign relations were to be regarded. Un- 
der a national government, treaties, the law and usages 
of nations, must be expounded in the same manner ; 
whereas, adjudications on the same questions in thirteen 
or more states, or in three or more confederacies, might 
not, and probably would not, be consistent with ' each 
other. A diversity of opinion would result from the 
variety of independent courts and judges appointed by 
different governments, operated upon and influenced 
more or less by local laws and interests, by peculiar and 
conventional modes of thought. A similar difficulty and 
cause for disquietude would arise in and from the exist- 
ence of thirteen or more different treaties made by the 
several states with foreign nations, each state acting for 
itself upon its own sovereignty. Treaties so made would 
not contain the same provisions, and our intercourse with 
other nations would not be harmonious. The wisdom of 
the convention in committing such questions to the juris- 
diction and judgment of courts appointed by, and respon- 



THE SCIENCE OF GOVERNMENT. 33 

I 

sible only to one national government cannot be too 
much commended * 

It was also reasonable to suppose, that the habits and 
pursuits of this country, judging from facts then existing, 
would be of a peaceful, quiet nature ; that the political 
convulsions which European institutions had frequently 
sustained might be avoided. From these and similar 
considerations, which will readily occur from your reflec- 
tion upon the subject, the foreign relations of the country, 
including the power to make and construe treaties, were 
confided to the federal government. Under the articles 
of confederation, the sole and exclusive right and power 
of determining on peace and war was vested in the 
United States, in congress assembled, except in certain 
specified cases of supposed imminent danger, which would 
not admit of delay until the United States in congress 
assembled could be consulted ; in such case, the state in 
clanger was authorized to act upon its own motion and 
responsibility. The power of entering into treaties and 
alliances, under certain limitations of power resulting from 
the legislative power of the several states, was also con- 
ferred upon the United States, in congress assembled.^ 
Under the federal constitution the treaty-making power 
is not subject to the same disabilities, although it is limi- 
ted, and, in some emergencies, may be liable to difficulty 
and embarrassment. By this instrument, the power to 
make treaties is vested in the president of the United 
States, acting by and with the advice and consent of the 
senate, two thirds of the senators present concurring. J 
The adoption of this instrument was advocated by many 
distinguished and patriotic individuals, who, subsequent to 



* The Federalist, No. 3. 

t Articles of Confederation, arts. vi. and xi. 

X Constitution of United States, art. ii, sec. 2. 

5 



34 THE SCIENCE OF GOVERNMENT. 

its adoption, entertained views different from each other 
in relation to the extent and construction of its powers. 
John Jay said, upon the subject under consideration, 
" The pow T er of making treaties is an important one, es- 
pecially as it relates to war, peace, and commerce ; and 
it should not be delegated but in such a mode, and with 
such precautions as will afford the highest security, that 
it will be exercised by men the best qualified for the pur- 
pose, and in the manner most conducive to the public 
good. The convention appear to have been attentive to 
both these points ; they have directed the president to 
be chosen by select bodies of electors, to be deputed by 
the people for that express purpose ; and they have com- 
mitted the appointment of senators to the state legisla- 
tures. This mode has, in such cases, vastly the advantage 
of elections by the people in their collective capacity, 
where the activity of party zeal taking advantage of the 
supineness, the ignorance, the hopes and fears of the 
unwary and interested, often places men in office by the 
votes of a small proportion of the electors. 

As the select assemblies for choosing the president, as 
well as the state legislatures who appoint the senators, 
will, in general, be composed of the most enlightened and 
respectable citizens, there is reason to presume that their 
attention and their votes will be directed to those men 
only, who have become the most distinguished by their 
abilities and virtue, and in whom the people perceive just 
grounds for confidence. The constitution manifests very 
particular attention to this object.* This course of rea- 
soning by Mr. Jay was approved by some, disapproved 
by others ; it was adopted by the people, by their ratifica- 
tion of the instrument. The treaty-making power is 
indispensable to the due exercise of national sovereignty ; 

* The Federalist, No. 64. 



THE SCIENCE OF GOVERNMENT. 35 

that it should belong to the national government would 
seem to be irresistibly established by every argument 
deduced from experience, from public policy, and a close 
survey of the objects of government. It embraces all 
sorts of treaties for peace or war, for commerce or terri- 
tory, for alliance or succors, for indemnity, for injuries or 
payment of debts, for the recognition or enforcement of 
principles of public law, and for any other purposes 
which the policy or interests of independent sovereigns 
may dictate in their intercourse with each other * A 
treaty, made and approved in this form by the president, 
with the concurrence of the senate, is regarded as obliga- 
tory upon the nation, if it does no violence to the con- 
stitution. Notwithstanding the clear language in which 
this power is expressed, the house of representatives on 
one occasion claimed a right to participate in some way, 
to some extent, in the exercise of the power, to be con- 
sulted and advised with in relation to treaties. This sup- 
posed right was resisted by President Washington, and the 
grounds of his objection to the claim" so set up, were ably 
and satisfactorily stated by him in a message to the house 
of representatives, presented March 30th, 1796, in which, 
after discussing the general reasons applicable to the sub- 
ject, he says: — "It is a fact declared by the general 
convention, and universally understood, that the constitu- 
tion of the United States was the result of a spirit of 
amity and mutual concession. And it is well known, that 
under this influence the smaller states were admitted to 
an equal representation in the senate with the larger 
states, and this branch of the government was invested 
with great powers, for on the equal participation of these 
powers the sovereignty and political safety of the smaller 



* Story on Con. U. S., book 3, cli. 37, sections 777, 778. 



36 THE SCIENCE OF GOVERNMENT. 

states were deemed essentially to depend/ 1 -* The power 
to make treaties, in the language by which it is conferred, 
is general and unrestrained ; it is not, however, unlimited ; 
the power is not to be so construed or exercised as to 
destroy the fundamental law of the state. A power given 
by the constitution cannot be construed to authorize a 
destruction of other powers given in the same instrument. 
It must be construed, therefore, in subordination to it, and 
cannot supersede or interfere with any other of its fun- 
damental provisions. Each is equally obligatory and of 
paramount authority within its scope, and no one em- 
braces a right to annihilate any other. A treaty to 
change the organization of the government, to annihilate 
its sovereignty, to overturn its republican form, or to 
deprive it of its constitutional powers, would be void, 
because it would destroy, what it was designed merely to 
fulfil, the will of the people." f A treaty is frequently 
designated a law, and is regarded as the supreme law of 
the land. It is more accurate to say it is a contract, hav- 
ing during its continuance the force and effect of a law, 
supreme in its operation, unless in conflict with the con- 
stitution of the United States. Practically, the treaty- 
making power is well guarded, and so far has been 
exercised without difficulty ; there is, however, a manifest 
defect in its construction. Cases may arise, in which it 
may be provided in a treaty, that the United States shall 
pay to the other contracting party a sum of money. In 
such event, the executive, if occasion should require, 
might possibly assume to pat/, if the means in the trea- 
sury should be adequate ; otherwise the payment would 
depend upon the action of congress, of which the house 
of representatives constitutes a part, and might be defeated. 



* Elliot, Diplomatic Code, vol. ii. p. 520. 

f Story on Con. U. S., book 3, ch. 37, sections 777, 778. 



THE SCIENCE OF GOVERNMENT. 37 

This is a possible, but not a probable ground of future 
embarrassment. 

After the treaty of 1794 .with Great Britain, which had 
been negotiated by John Jay, had been approved by the 
senate, the house of representatives claimed the right to 
intervene, and to reject or carry it into effect at their 
election ; a severe and angry debate was had, which re- 
sulted in a renunciation of the power claimed by a single 
vote. Treaties are, by some writers, designated as the 
laws of nations. They are not ; they are merely obliga- 
tions or contracts binding upon the parties thereto, and 
have no force upon nations not parties ; they may be in 
accordance with the law of nations, or they may not, in- 
asmuch as the contracting parties may make, for their 
own guidance and intercourse, such provisions as they may 
think expedient. Treaties may be referred to as having 
more or less tendency to show, what the law of nations 
upon a particular subject may be. A particular provision 
or stipulation, or an acknowledgment and assertion of a 
principle, may be inserted in treaties between different 
nations, so often and for such period or periods of time, 
as finally to be regarded as an admitted or well estab- 
lished usage among nations, and from such continued usage 
may have the force of a law of nations. The law of na- 
tions has, undoubtedly, been influenced by the science of 
government, as exhibited in the institutions of the United 
States. It has been influenced by the liberal political 
privileges and principles which we enjoy and profess. 
The conduct of other nations, the character of their citi- 
zens, and their ideas of right and wrong, of abstract jus : 
tice have, no doubt, been influenced by our intercourse. 
A remarkable instance may be found in a treaty made by 
the United States with the Dey of Algiers in 1815, in 
which it is provided, that " the consul of the United States 
of America shall not be responsible for the debts con- 



38 THE SCIENCE OF GOVERNMENT. 

tracted by citizens of his own nation, unless he previously 
gives written obligations so to do." In the same treaty, 
it is provided, " If in the course of events a war should 
break out between the two nations, the prisoners cap- 
tured by either party shall not be made slaves, they shall 
not be forced to hard labor or other confinement than such 
as may be necessary to secure their safe keeping until ex- 
changed." This treaty also contains a declaration of the 
principle, by which we profess, and always have professed 
to regulate our intercourse with other communities. It 
is in these words : " As the government of the United 
States of America has, in itself, no character of enmity 
against the laws, religion, or tranquillity of any nation, 
and as the said states have never entered into any volun- 
tary war or act of hostility, except in defence of their 
just rights on the high seas, it is declared by the contract- 
ing parties, that no pretext arising from religious opinions 
shall ever produce an interruption of the harmony be- 
tween the two nations." * A proposition to the English 
government to insert a provision that our consuls should 
not be required to pay the debts of American citizens, 
would be regarded as uncalled for ; in a negotiation with 
the Dey of Algiers it might be of great import. The 
fact that such a provision was inserted in the treaty to 
which reference has been made, as had been a similar 
provision in an earlier treaty with the same party, exhi- 
bits the state of civilization of the party against whom 
such a provision was required, and it cannot be doubted, 
that ultimately it must produce in such party a higher 
and more elevated standard of right and morality. This' 
treaty exhibits also, on our part, skilful diplomacy in 
yielding our apparent regard for the jjeculiar religious views 
of the other contracting party ; it also exhibits, on our part, 

* Elliot, Diplomatic Code, vol. i. p. 492, arts. 13, 15, 17. 



THE SCIENCE OF GOVERNMENT. 39 

an acknowledgment, that the religion and internal ar- 
rangements of a nation, are matters peculiarly within its 
control. In our treaties, in our intercourse with foreign 
nations, the existence of the elective franchise has been 
more or less effective. The treaty-making power, as I have 
shown, is limited ; it is indirectly reached by the ballot of 
our citizens. Foreign nations which negotiate with the 
United States, must do so subject to this limitation and 
capacity of our system ; in that way the system operates 
upon them. 

In this way, and by our example, by our fidelity to our 
professions, and in no other way, we can rightfully influ- 
ence, or interfere w r ith, the political policy or institutions 
of other countries. An individual cannot with propriety 
interfere with the rights of another. Upon the same 
principle, a nation cannot interfere with the rights of 
another nation ; each must use its own rights, exercise 
its own sovereignty within its own domain, and without 
prejudice to other sovereignties. This is a fact or princi- 
ple to which the United States have always professed ad- 
herence. An adherence to it is essential to our existence ; 
a violation of the principle would be a violation of our 
system, which, as I have endeavored to show, is limited in 
all its parts and departments, no one of which extends to 
the internal affairs of any country except our own. The 
most recent, most able and accurate writer upon interna- 
tional law says : " No state has any right to intermeddle 
in the internal affairs of another." This rule is a conse- 
quence of the legal equality and exclusive jurisdiction of 
independent states. A right of interference cannot be 
claimed by an ally, much less can it be claimed by a 
stranger. International rights and duties are reciprocal. 
No nation is entitled to exercise any right which it is not 
bound to allow under the like circumstances ; and as no 
powerful state would allow a feeble neighbor to inter- 



40 THE SCIENCE OF GOVERNMENT. 

meddle in its domestic affairs, so neither has a powerful 
state a right to intermeddle in the domestic affairs of a 
feeble neighbor. The perfect equality and entire inde- 
pendence of all distinct states, is a principle of public law 
generally recognized as fundamental. Eelative magni- 
tude creates no distinction of right ; relative imbecility, 
whether permanent or casual, gives no additional right to 
the more powerful neighbor, and any advantage seized on 
that ground is mere usurpation. This is the great foun- 
dation of public law, which it mainly concerns the peace 
of mankind, both in their public and private capacities, to 
preserve inviolate. The exceptions which have been at- 
tempted to be ingrafted upon this principle are wholly 
inadmissible. Even such interventions as are humane 
and disinterested in their purpose, are illegal. Though 
they may be beneficial in act, they are pernicious in 
example ; for charity may be made a cloak for ambition, 
and a state is no more justified than a private person in 
doing evil that good' may come. Though its charity 
be genuine, a nation has no right to impose benefits upon 
its neighbors by force, or to gratify its humanity at the 
expense of their independence. To procure an eminent 
good by means that are unlawful, is as little consonant to 
public justice as to private morality. A nation is not 
justified in assuming rights that do not belong to her, 
merely because she means to apply them to a laudable 
purpose ; nor in setting out on a moral crusade of convert- 
ing other nations by acts of unlawful force* 

The views which have been presented, and the char- 
acter of the treaty-making power, will readily suggest 
to your minds the position which the United States 
should occupy in their relation to, and with other coun- 
tries. The position to which their system of government 

* Wildman on International Law, vol. i. pp. 47, 48, 49. 



THE SCIENCE OF GOVERNMENT. 41 

and its principles, distinctly point. That position is, in 
time of peace, non-intervention ; in time of war, in which 
the United States are not involved, it is neutrality. In 
1793, President Washington made a public proclamation, 
copies of which were sent to all foreign courts with 
which we had intercourse, in which he announced that 
the course of this country would be one of strict neutral- 
ity in the controversy then subsisting between England 
and France ; that the duty and interest of the United 
States required that they should, and that they would 
with sincerity and good faith, adopt and pursue a conduct 
friendly and impartial towards the belligerent powers* 
This proclamation was condemned and disapproved in a 
series of letters written by James Madison, upon the 
ground that it was an excess of executive authority ; that 
it was in its position a violation of certain treaty stipula- 
tions, which, it was averred, this country had entered into 
with France. On the other hand, it was approved and 
sustained in several papers written by Alexander Hamil- 
ton, who denied the supposed excess of executive author- 
ity, and contended that it was not a violation of any obli- 
gations which had been made by this country. Whether 
the one or the other of these eminent and able men 
were correct in their course of reasoning, I do not in- 
quire ; neither of them denied the principle of it, so far 
as it stated the position of the country to be one of neu- 
trality, and rightfully so, independent of any supposed 
treaty obligation. In 1794, when Mr. Monroe succeeded 
Mr. Morris as minister of this country to the republic of 
France, the principles of the proclamation were reite- 
rated.f They were sustained by the country in its offi- 
cial intercourse, and by an adherence to the policy which 
the executive had adopted, although it is true they were 

* Elliot, Diplomatic Code, vol. ii. p. 512. f Ibid. vol. ii. p. 515. 

6 



42 THE SCIENCE OF GOVERNMENT. 

assailed by a considerable portion of the press and of the 
people. It is now conceded, that the policy of this coun- 
try disclosed in its system, in the interests and habits of 
the people, is that of neutrality. An effort, however, has 
constantly been made in this country to enlarge the 
rights of a neutral nation, which efforts, have no doubt, 
to some extent, been successful ; these rights have been 
the subject of discussion and negotiation, and will no 
doubt, hereafter, be the subject of discussion and negotia- 
tion. The most prominent principles of international 
law, applicable to the interests and rights of a neutral 
nation, are : First. The supposed right of a neutral nation 
to carry in its ships the goods of a belligerent, and there- 
by during their transportation to afford to the goods of 
the belligerent an immunity and exemption from capture ; 
in other words, that free ships make free goods. Second. 
The right of blockade. Third. The right of a neutral na- 
tion, in time of war, to engage in the coasting or other 
trade of a belligerent, in which the neutral is not allowed 
to participate in time of peace. Fourth, The right of 
search. 

It is not my intention to read a treatise upon these 
questions, or to consider them more extensively than is 
necessary to exhibit our influence as a country upon 
them. They are subjects upon which the pride of a free 
and independent people may be easily excited by mere 
politicians. A nation whose habits, position, and system, 
are adverse to war and its incidents ; whose interests can 
be more effectually secured by a continued state of peace, 
will naturally advocate an enlargement of the privileges 
and immunities which appertain to a state of neutrality. 
In accordance with such an inclination, the United States 
have always endeavored, in its negotiations, to enlarge 
them ; in all particulars in which the rights of a neutral 
could be regarded as defined and well established, in and 



THE SCIENCE OF GOVERNMENT. 43 

by the law of nations, the United States have not assented 
to or suffered any diminution of them to be made. The 
decided attitude of this country upon this subject has, 
without doubt, exerted a constant and perceptible influ- 
ence in favor of neutral rights. The position that free 
ships make free goods, was a subject of discussion and of 
treaty stipulation before our government existed ; it had 
not, however, the same prominence which it has since 
acquired. Great Britain has inserted in several of its 
treaties with France, with Spain, and other powers, a pro- 
vision yielding the right for the time being ; but she 
never ceased to deny the position, when set up as a mat- 
ter of right ; has never assented to such provision in any 
treaty with this country which I have examined. The 
United States have entered into treaties with fifteen dif- 
ferent powers, in which this right has been inserted. The 
first in time and in importance, is the treaty which was 
made with France, in February, 1778, before our indepen- 
dence was acknowledged by Great Britain. In this treaty 
it is provided, u that free ships give a freedom to* goods, 
and that every thing shall be deemed free and exempt, 
which shall be found on board the ships belonging to the 
subjects of either of the confederates, although the whole 
lading or any part thereof should appertain to the 
enemies of either, contraband goods being always ex- 
cepted." * 

This position in this treaty had no little agency in a 
declaration made by the empress of Russia, in February, 
1780, by and from which originated "the armed neutral- 
ity." This declaration or manifesto contained several 
articles, one of which is, " that the goods belonging to the 
subjects of the powers at war, shall be free in neutral 
vessels, except contraband articles."-)- Prussia, Austria, 



* Stat, at Large, U. S., vol. viii. 24, art. 23. 
t Wheaton, Law of Nations, pp. 295-297, 303. 



44 THE SCIENCE OF GOVERNMENT. 

Portugal, and the United States, the latter acting by an 
ordinance of congress, under the confederation, acceded 
to the principles of this armed neutrality. In 1794, the 
United States made a treaty with Great Britain which 
contained an article of a directly opposite character, 
which produced a hostile state of feeling on the part 
of France, manifested in its diplomatic correspondence, 
and by its seizures of the property of American citizens. 
This unfriendly disposition was strengthened by the 
opinion of France, that the proclamation of neutrality, 
made by Washington, to which reference has been made, 
was a violation of a treaty obligation, on our part, to 
assist the republic of France, according to our ability, in 
any conflict which it might have with England, provided 
such conflict should arise during the continuance of the 
war between Great Britain and this country. It was also 
manifested by two decrees made by " the Directory of 
France," in one of which it is declared that the United 
States had renounced, by their treaty with Great Britain, 
the privileges which it had previously enjoyed under its 
treaty of 1778 with France, and consequently, that enemy 
property taken by French cruisers from on board Ameri- 
can vessels would be regarded as a legal prize. In the 
other it is declared, that all neutral vessels laden with pro- 
perty of an enemy would be liable to capture and confis- 
cation* 

These decrees were violations of the law of nations, 
and produced a state of quasi war between this country 
and France, which continued until the 30th of September, 
1800, at which time a convention was entered into be- 
tween the United States and the First Consul of France. 
By the terms of this convention, it was agreed that free 
ships should make free goods \ that the citizens of either 
country might engage in the coasting trade of the enemy 

* Wheaton, Law of Nations, pp. 389, 390. 



THE SCIENCE OF GOVERNMENT. 45 

of the other ; that certain ships and goods which had 
been captured should be restored. This convention was 
followed by two others between the same parties, by one 
of which Louisiana was ceded to the United States, and 
thereby the early friendship and harmony of the two 
countries restored.* Before these conventions were con- 
cluded, and in reply to the accusations of the republic of 
France and in vindication of the course of the United 
States, Marshall, Pinckney, and Gerry, American envoys 
at Paris, prepared an able state paper, in which it is said, 
" By the law of nations, free ships do not make free goods, 
nor enemy ships, enemy goods." The stipulation in the 
treaty of 1778 with France, formed an exception to a 
general rule, which retains its obligation in all cases where 
not changed by compact. That the treaty of 1794 with 
Great Britain did not concede a new right, but only 
mitigated the practical exercise of a right already ac- 
knowledged to exist. The desire of establishing univer- 
sally the principle, that neutral ships should make neutral 
goods, was felt by no nation more strongly than by the 
United States. It was an object which they kept in view, 
and would pursue by such means as their judgment might 
dictate. But the wish to establish a principle, was essen- 
tially different from an assumption that it is already 
established. However solicitous America might be to 
pursue all proper means tending to obtain the concession 
of this principle, by any or all of the maritime powers of 
Europe, she had never conceived the idea of obtaining 
that consent by force. The United States would only 
arm to defend their own rights ; neither their policy nor 
their interests, permitted them to arm in order to compel 
a surrender of the rights of others.f Whether the doc- 

* Elliot, Diplomatic Code, vol. i. pp. 84, 92, 94, 109-116. 
t Wheaton, Law of Nations, p. 388. 



46 THE SCIENCE OF GOVERNMENT. 

trine " that free ships make free goods," as a matter of 
right, as a principle of international law, is to be sustained, 
may be determined by an examination of the relative 
rights of the nations at war, in connection with each 
other as belligerents, and in connection with nations not 
engaged in the controversy. When two powers are at 
war, they have a right, between themselves, to make 
prizes of the ships, goods, and effects of each other ; this 
is an undoubted principle of international law. Other 
nations occupying a neutral position have no right to say 
to those engaged in the conflict, that belligerents shall 
not, between themselves, exercise the immunities growing 
out of their relation to each other. As a general propo- 
sition it is equally clear, " that a neutral nation is not to 
be molested or impeded, in the exercise of its rights by 
its neighbors, who are at war with each other." Here 
then are, apparently, rights existing in different parties ; a 
competition of right which may not be fully exercised, 
unless the one or the other shall, to some extent, yield 
its pretensions. How are they, upon abstract principle, 
to be reconciled or managed ? When an individual enters 
into society, or finds himself a member of it, he yields a 
portion of his natural or supposed rights to the exigen- 
cies and to the uses of the association ; he submits and 
agrees to use his privileges and immunities, so as not to 
destroy or impair the reasonable and lawful immunities 
of another. Nations, in their intercourse with each other, 
which intercourse is not a matter of original, positive 
right, in the one or in the other, but matter of comity, 
must in like manner act under an implied understanding 
not to impair the rights of each other ; they are bound 
to regard the status or condition of those with whom they 
traffic. It would seem, therefore, to be reasonable that 
the right of a belligerent to seize the property of his 



THE SCIENCE OF GOVERNMENT. 47 

enemy upon the high seas, is paramount to any supposed 
right of a neutral, to give such property an exemption 
or immunity from capture, that free ships do not make free 
goods. This right of capture must be exercised by the 
belligerent upon his own territory, upon the territory of 
his enemy, or upon the high seas, which is territory com- 
mon to all the world ; he cannot enter the territory of a 
neutral, which, by the principles of international law ex- 
tends the distance of gunshot from the shore, generally 
computed by consent of all nations as a marine league. 
This results from the well established position, that the 
jurisdiction of a nation within its own territory is exclu- 
sive and absolute ; it is susceptible of no limitation not 
imposed by itself. Any restriction upon it, deriving vali- 
dity from an external source, would imply a diminution 
of its sovereignty to the extent of the restriction, and an 
investment of that sovereignty to the same extent in 
that power which could impose such restriction. All ex- 
ceptions, therefore, to the full and complete power of a 
nation within its own territories, must be traced up to 
the consent of the nation itself. They can flow from no 
other legitimate source. The world, being composed of 
distinct sovereignties possessing equal rights and equal 
independence, whose mutual benefit is promoted by in- 
tercourse with each other, and by an interchange of those 
good offices which humanity dictates and its wants re- 
quire, all sovereigns have consented to a relaxation in 
practice, in cases under peculiar circumstances, of that 
absolute and complete jurisdiction within their respective 
territories, which sovereignty confers* 

It is therefore evident, that the intercourse of nations 
independent of compact, is merely a matter of comity. 

* Schooner Exchange v. McFaclden, 7 Cranch Rep. 11G. 



48 THE SCIENCE OF GOVERNMENT. 

The writers upon international law are not entirely 
agreed upon the question under consideration. The 
ablest, the earliest, and the latest writers are clearly in 
favor of the position, that free ships do not make free 
goods. Upon the same principle, which conduces to this 
result, it follows that the goods of a neutral on board the 
ship of an enemy, are not, because so found, liable to sei- 
zure, although goods in such condition are, in the first 
instance, presumed to be enemy property, and the neutral 
claimant must prove his title, and show that the shipment 
was made for his own legal purposes, and not to aid or 
facilitate the hostile operations of the enemy. The doc- 
trine upon this subject has been recognized by the 
supreme court of the United States in conformity with 
what is supposed to be the weight of authority upon 
the subject, and this is to be regarded as decisive, so far 
as the United States are concerned. In the case to 
which reference is made, the court say: "The rule 
that the goods of an enemy found in the vessel of a 
friend are prize of war, and that the goods of a friend 
found in the vessel of an enemy are to be restored, is 
believed to be a part of the original law of nations, as 
generally, perhaps universally, acknowledged. Certainly 
it has been fully and unequivocally recognized by the 
United States. This rule is founded upon the plain and 
intelligible principle, that war gives a right to capture the 
goods of an enemy, but gives no right to capture the 
goods of a friend. In the practical application of this 
principle so as to form the rule, the propositions that the 
neutral flag constitutes no protection to enemy property, 
and that the belligerent flag communicates no hostile 
character to neutral property, are necessarily admitted. 
The character of the property, taken distinctly and sepa- 
rately from all other considerations, depends in no degree 



THE SCIENCE OF GOVERNMENT. 49 

upon the character of the vehicle in which it is found * 
A neutral nation has no reason to complain of this posi- 
tion, because a neutral ship, having on board an enemy 
cargo, if seized and carried in for the purpose of confis- 
cating the cargo, is entitled to freight from the captor, 
and thus suffers no injustice. A neutral vessel has a right 
to carry the property of the enemy, but subject to the 
right of the belligerent to bring in the ship so employed, 
for the purpose of bringing the cargo to adjudication. A 
neutral vessel so employed, is entitled to her freight, as a 
lien attaching to the cargo. The captor takes cum onere. 
The freight attaches as a lien, which he must discharge 
by payment, provided, as it must always be understood, 
that there are no unneutral circumstances in the conduct 
of the ship to induce a forfeiture of this demand. Where 
a neutral vessel is brought in on account of the cargo, 
the vessel is discharged with full freight, because no 
blame attaches to her ; she is ready and able to proceed 
to the completion of the voyage, and is only stopped by 
the incapacity of the cargo. When such an incapacity 
on the part of the cargo occurs, the owner has done his 
utmost to carry his contract on to its consummation ; it is 
a final execution as to the owner of the ship, inasmuch 
as it does not lie with him that the contract has not been 
performed. Freight is, in all ordinary cases, a lien, which 
is to take place of all others. The captor takes cam onere. 
It is the allowed privilege of a neutral to carry the prop- 
erty of the enemy, subject to its capture and the tempo- 
rary detention of his vessel ; and if he does not prevaricate, 
or conduct himself in any respect with ill faith, he is 
entitled to his freight.-}* 



* The Nereide, 9 Cranch, Rep. 388 ; Wildman, International Law, vol. ii. 
p. 138. 

f Wildman, International Law, vol. ii. p. 153. 

7 



50 THE SCIENCE OF GOVEKNMENT. 

The law in this particular, as stated, has been often 
recognized by Sir William Scott, one of the most eminent 
and learned judges which England has produced - whose 
judgments are no less distinguished for their classical and 
logical construction, than for the enlightened, sound 
morality which they exhibit. The position that the neu- 
tral ship, when captured in consequence of having enemy 
property on board, is entitled to freight from the captor, 
has also been recognized and upheld by the highest judi- 
cial authority in the country * 

Although the principles which I have suggested may 
be considered as settled and sustained by authority, the 
United States have in some instances agreed, in its trea- 
ties, that enemy ships shall make enemy goods, and 
thereby upon grounds of temporary policy, yielded for 
the time being, its adherence to a course not in accord- 
ance with its general policy in relation to neutral rights.*)- 

The right of a belligerent to impose a blockade upon 
the ports or harbors of his enemy, so as to prevent access 
thereto, has been universally conceded as the exercise of 
a right recognized by international law. Attempts have 
been made to establish constructive blockades, or as they 
are more familiarly and significantly called, "paper block- 
ades, all of which have signally failed. 

It is stated by Chitty, using the language of Vattel, 
and citing his works and others as authority, that a bellig- 
erent may lay siege to a place, or simply blockade it, and 
having done so, he has a right to hinder any one from 
entering, and to treat as an enemy, whoever attempts to 
enter the place or carry any thing to the besieged - for 
the party attempting to enter, opposes the undertaking 



* The Commoren, 1 Wheaton, Eep. 382. 

f Treaty of Commerce with France, Feb. 6, 1778, art. xiv. ; Convention with 
France, Sept. 30, 1800, art. xv. ; Statutes at Large, U. S., vol. 8, pp. 20, 186. 



THE SCIENCE OF GOVERNMENT. 51 

of the belligerent, and may contribute to the miscarriage 
of it, and thus involve the party engaged in the conflict, 
in all the misfortunes of an unsuccessful war.* 

When a violation of a blockade is averred, three things 
must be made out in proof: the existence of an actual 
blockade, the knowledge, express or implied, of the party 
supposed to have violated it, and some act of violation, 
either by going in, or coming out with a cargo laden 
after the commencement of blockade.^ A blockade must 
be declared by competent authority ; the declaration is 
an act of sovereignty, and can be exercised only by the 
sovereign power, exercised ordinarily by the express 
direction of such authority. An exception to this is in 
some instances allowed ; a commander going to a distant 
station, may reasonably be supposed to carry with him 
such a portion of sovereign authority, delegated to him, 
as may be necessary to provide for the exigencies of the 
service on which he is employed. A blockade is to be 
considered as actually existing, when there is power to 
enforce it. A complete blockade cannot subsist, unless 
the besieging force can apply its power to every point of 
the blockaded port.t An accidental absence of the block- 
ading force, being blown off by the wind, will not defeat 
a blockade, if the suspension, and the reason of the sus- 
pension, are known. A knowledge of the blockade in 
the party violating, is necessary, which may be attained 
by a formal notification from the blockading power, or by 
the notoriety of the fact.§ A blockade may be violated 
by going into the place blockaded, or by coming out of 
it with a cargo laden after the commencement of the 
blockade. A neutral ship, which may be in a port prior 
to the commencement of a blockade, may come out in 



* Chitty, Law of Nations, p. 128. f I bid - P- 13 °- 

t Mcrcurius, 1 Rob. Rep. 80. § The Rolla, 6 Rob. Rep. 367. 



52 THE SCIENCE OF GOVERNMENT. 

ballast ; or if laden with a neutral cargo, put on board be- 
fore the commencement of the blockade, may proceed 
with such cargo. When a blockading squadron or force 
is driven off by a superior force, the blockade cannot be 
considered as actually subsisting. It is essential to the 
existence of a blockade, that the place should be invested 
by a competent force. It must be regularly maintained ; 
if some unprivileged ships are allowed to come out and 
others to go in, such a relaxation destroys the legal effect 
of the blockade. A blockade is regarded as an uniform, 
universal exclusion of all vessels not privileged by law. 
If such ships are allowed to pass, others will have a right 
to infer that the blockade is raised* A mere proclama- 
tion that a place is invested, is insufficient to constitute a 
legal blockade.f This position must be regarded as un- 
deniable, supported by the concurring assent and appro- 
bation of intelligent jurists. It has not always been re- 
spected ; several efforts have been made to give force and 
effect to mere paper blockades ; these efforts have uni- 
formly been resisted by the United States. If mere bul- 
letins were allowed to take the place of actual force, in 
this respect, the commercial interest of the United States 
would become dependent, in time of war between Euro- 
pean sovereignties, upon their caprice. Such result, or 
the establishment of such principle, would be felt by the 
people of this country at once ; it would be regarded in- 
consistent with our views of public law, at variance with 
our liberal system, the action of which is always indi- 
rectly controlled by the popular will. The doctrine of 
paper blockades, originated with the states-general of the 
Netherlands, in 1630, at which time they undertook by 
proclamation, to blockade the ports of Flanders, then in 



* Wildman, International Law, vol. ii. pp. 179, 182. 
f The Betsey, 1 Rob. Rep. 93. 



THE SCIENCE OF GOVERNMENT. 53 

the possession of Spain. In 1652, they undertook to 
prohibit all the world from trade with the English ; but in 
1663, when Spain undertook to carry the same principle 
into effect, the states-general denied the existence of such 
right.* In 1689, England and Holland entered into a 
convention, by which they undertook and agreed to in- 
terdict all neutral commerce with France, and to seize 
any vessel, whatever king or state it might belong to, 
that should be found sailing into or out of the ports of 
France, and to condemn both vessel and cargo as lawful 
prize. These instances were of little import. It was re- 
served to Napoleon to renew the doctrine, to give it some 
degree of importance, from the boldness and vigor with 
which he assumed the theory, and persisted in its execu- 
tion, to the extent of his power. The Berlin and Milan 
decrees are as familiar as household words. They were 
met by the British orders in council, which were as regard- 
less of the law of nations and the rights of neutral coun- 
tries, as had been the decrees of Napoleon. The orders 
in council were sustained partially by the courts of ad- 
miralty, in England, not upon principles of international 
law, but upon the ground that France, by disregarding 
all law, had put itself beyond the pale of law, and as 
matter of self-preservation, England might well meet the 
enemy with its own weapons. The matter of blockade 
has frequently been the subject of treaty negotiation by 
this country with other nations, in all of which, an ad- 
herence has been maintained to the clear and reasonable 
rights appertaining thereto. 

In some instances, the United States have obtained by 
treaty a recognition of the law of blockade, with all the 
modifications and safeguards for its exercise which could 
be reasonably required, which has produced a slight 

* Wheaton, Law of Nations, p. 137, et seq. 



54 THE SCIENCE OF GOVERNMENT. 

modification of its rigor. Treaties, soon after our inde- 
pendence and government had assumed a degree of firm- 
ness and an ability to command respect abroad, were 
made with France and Great Britain, in which it was 
stipulated, that a ship sailing to a blockaded port, with- 
out knowledge of the blockade, should be warned off; 
that a vessel in such condition should not be liable to 
seizure, unless, after such warning, it should enter, or 
make an attempt to enter a second time* A mere 
intent to enter, not manifested by some overt act, or 
attempt to enter, has never been regarded as a breach of 
blockade. In April, 1804, some two or three years only 
before the British orders in council, to which reference 
has been made, the British government issued orders to 
to its naval commanders not to consider blockades as 
existing, unless in respect to particular ports which might 
be actually invested, and in such case not to enter them. 
The principles of blockade, to which reference has been 
made, which I have endeavored to state intelligibly, and 
with proper limitations, have been discussed by the 
Supreme Court of the United States, whose judgments 
upon this subject are characterized for their learning and 
adherence to sound international law.f 

The United States have been, and must be, indebted 
for a large portion of its commercial welfare, to a sound, 
honest interpretation and enforcement of these principles. 
Another right, connected with our natural neutral posi- 
tion, is, the right of a neutral nation, in time of war, to 
engage in the coasting or other trade of a belligerent, in 
which the neutral is not allowed to participate in time of 



* Fitzsimmons v. The Newport Ins. Co. 4 Cranch, Rep. 185 ; Yeaton v. Fry, 
5 Cranch, Rep. 335; Olivera v. Union Ins. Co. 3 Wheat. Rep. 183. 

f Treaty with Great Britain, Nov. 19, 1794, art. xvii. ; Treaty with France, 
Sept. 30, 1800, art. xii. 



THE SCIENCE OF GOVEKNMENT. 55 

peace. It has been the policy of every maritime nation 
to keep its coasting trade in its own hands. Foreign 
nations have not been permitted usually to engage in it. 
A variety of considerations might be adduced, which will 
readily occur to you, showing the fitness of this rule. It 
may be regarded as a matter almost essential to self-pre- 
servation. If a foreign nation should be allowed to 
engage, in time of peace, in our coasting trade, it would 
afford to such nation great opportunities for acquiring an 
accurate knowledge of our views, the convenience or in- 
convenience of particular localities, as places of disem- 
barkment in time of war, and generally to acquire a 
knowledge of our capabilities, of our weak and strong 
points, which might subsequently be used to our disad- 
vantage. Our coasting, or home trade, is also essential 
to a nursery for seamen. It is a means of extending our 
intercourse as citizens of a common country, of increasing 
our wealth as a nation, and generally of adding to our 
comfort and security. Our navigation laws are in accord- 
ance with these considerations. Independent of these 
suggestions, and of authority which might be cited 
upon the subject, it would seem that a neutral nation 
cannot, in time of war, claim to have an enlargement or 
expansion of its rights. A neutral nation is obliged to 
modify, and surrender, in some particulars, as has been 
shown, its accustomed immunities, to the condition or 
status of nations at war. If allowed to enlarge them by 
the exercise of new and unusual rights, it would be able 
to protract and defeat the purpose of war, and thus ope- 
rate to its own prejudice, and would, most probably, in- 
volve itself in the controversy of its neighbors. This 
matter, however, has been the subject of negotiation, and 
has generally been regulated, in treaties, in conformity 
with what would seem to be the natural or reasonable 
course to be adopted. 



56 THE SCIENCE OF GOVERNMENT. 

In one instance, at least, in a treaty made by this 
country with France, the right to engage in the coasting 
or in the home trade, and in the colonial trade of an 
enemy, in time of war, has been conceded. In a case 
before the Supreme Court of the United States, it was 
assumed, as a well settled principle of international 
law, that a neutral nation could not, with propriety or 
impunity, engage in the coasting trade of an enemy in 
time of war, independent of compact or treaty stipu- 
lation* 

The only remaining topic to which your attention will 
be requested in this connection, is the right of visitation 
and search. In time of war, this right must be regarded 
as clear, in favor of the belligerent, as indispensable to 
his security. It cannot be questioned, so long as war 
shall be regarded one of the legitimate modes of defence, 
or an instrument to be employed in the assertion of 
right. Mr. Wildman, a recent able and accurate annota- 
tor, or writer upon international law, says : " Every 
vessel is bound to submit to visitation and search, whether 
it be a vessel of a friend, or of an ally, or even of a sub- 
ject, and submission may be compelled, if necessary, by 
force of arms, without giving claim to compensation for 
any damages incurred thereby ; if the vessel upon visita- 
tion should not be found liable to be detained, no cir- 
cumstances can dispense with this obligation. A vessel 
is not exempted, either by its built, or its flag; such 
circumstances furnish no proof of the national character 
of the vessel ; and if a vessel be neutral, a belligerent is 
entitled to ascertain, whether there is either enemy prop- 
erty, or contraband of war on board. If a master of a 
vessel resists search by force, that is a ground of confisca- 
tion. The right of visiting and searching merchant ships 

* The Comnioren, 1 Wheat. Rep. 382, 



THE SCIENCE OF GOVERNMENT. 57 

on the high seas, whatever be the ships, whatever be the 
cargoes, whatever be the destinations, is an incontestable 
right of the lawfully commissioned cruisers of a belliger- 
ent nation. Until they are visited and searched, it does 
not appear what the ships, or the cargoes, or the destina- 
tions are ; and it is for the purpose of ascertaining these 
points, that the necessity of this right of visitation and 
search exists. This right is so clear in principle, that no 
man can deny it who admits the legality of maritime 
capture ; because if you are not at liberty to ascertain by 
particular inquiry whether there is property that can be 
legally captured, it is impossible to capture." Good faith 
and an observance of the law of nations is required 
from every neutral nation ; if such nation does not 
regard the law in this particular, it cannot rightfully 
complain of the consequences which may and must 
result from such disregard of well established principle, 
and from its own violation of duty. The right of visita- 
tion must be exercised with as little harshness and vexa- 
tion in the mode as possible ; but soften it as much as 
may be, it is a right of force, though of lawful force, 
which cannot lawfully be resisted. It is an erroneous 
and wild conceit, that wherever force is used, it may be 
forcibly resisted ; a lawful force cannot lawfully be re- 
sisted. Resistance by a neutral to visitation and search, 
is regarded as cause of condemnation, without reference 
to the fact, or inquiry, whether an examination would 
lead to a detention and condemnation or not. Sailing 
under convoy of an enemy, is not regarded as a protec- 
tion to the neutral, but as a manifestation of an intent 
or willingness to espouse and to uphold his interests. It 
has been sometimes agreed by nations, that a ship sailing 
under the convoy of an armed or public ship of the 
nation to which it belongs, shall not be subject to visita- 
tion and search. This, however, is not a matter of right, 

8 



58 * THE SCIENCE OF GOVERNMENT. 

is not regarded by the law of nations as a protection ; 
if this were so, the right of visitation and search might 
be rendered futile and nugatory. A necessary deduction 
from the principles discussed, results in the establishment 
of the position, to which reference has been made, that 
every right, public and private, is to be exercised and 
enforced, so as not to be incompatible with, or in viola- 
tion of, the private and public rights of others. 

This principle or fact cannot too frequently be the 
subject of your consideration and regard ; it applies to all 
the relations of life, which you can, or may assume as 
members of civilized society, as members of the human 
family, however extensive the limits and ramifications 
may be. 

The supposed right of visitation and search, in time of 
peace, stands upon considerations entirely distinct from 
and dependent upon principles, which do not and cannot 
apply to a state of war. The right of search as applied, 
and as attempted to be applied in time of peace, has 
been the subject of discussion, between this country and 
England, since the establishment of our independence. 
It was the most prominent and the principal cause of the 
war of 1812. In the negotiations upon this subject 
which have taken place, our sense of right, of independ- 
ence, the free and enlightened basis of our system, have 
been exhibited and adhered to with more constant and 
unwavering persistence, than in any other matter con- 
nected with our foreign relations. 

In these negotiations our moral power and influence 
has been disclosed, and its propriety acknowledged. Great 
Britain, from the time at which she acknowledged, our 
independence until a recent period, has claimed the right 
of visitation and search, in time of peace, upon two 
grounds, and for two purposes; the suppression of sla- 
very, and the taking from our ships its own seamen ; in 



THE SCIENCE OF GOVERNMENT. 59 

other words, the impressment of seamen. This claim 
has uniformly been resisted, and it may now, in conse- 
quence of our firmness, be regarded as abandoned. The 
purpose, the object to be attained by this claim, has great 
plausibility and may be sustained by very cogent consid- 
erations. The suppression of the slave-trade is desirable ; 
every consideration of right and of humanity which can 
be suggested, favors any movement or effort which can 
be rightfully made in its accomplishment. It may then 
be asked, why not yield to the right of visitation and 
search, that thereby an admitted good purpose may be 
accomplished, and an admitted and barbarous wrong may 
be defeated and prevented ? The answer is of a two-fold 
character ; it is never right to do wrong that good may 
come. The conduct of a nation, like that of an individ- 
ual, cannot be watched and controlled, in matters merely 
of a supposed moral character, by its neighbors, but must 
be left to its own guidance, to its own sense and appre- 
ciation of its duties, otherwise confusion and disorder 
would be substituted for peace and character. In other 
words, the conduct and integrity of a nation confined to 
its own borders and within its own jurisdiction, cannot be 
the subject of rightful complaint or interference, by those 
whose rights and immunities are not touched or impaired. 
Upon this question the conduct of the American govern- 
ment, and of those intrusted with its public functions, 
has ever been distinguished for its firm, unyielding, and 
unassailable integrity. 

The suppression of slavery has ever been an object of 
solicitude to our government, the aid of which, to an ac- 
complishment thereof, has been uniformly extended. 
The United States, in advance of other countries, by its 
penal enactments, declared the slave-trade to be piracy. 
It has often stipulated in its treaties, to assist in its sup- 
pression, by every reasonable effort in its power. In 



60 THE SCIENCE OF GOVERNMENT. 

1818, the English government undertook to establish the 
right of search, in time of peace, for certain purposes, 
among which was the suppression of the slave-trade ; 
several governments assented ; application was made to 
the United States for its approval, which failed. In 
reply to this request, Mr. John Quincy Adams, secretary 
of state under Mr. Monroe, was directed to say to the 
British government, that the solicitude of the United 
States for the accomplishment of the common object, the 
total and final abolition of the slave-trade, continued with 
all the earnestness which had ever distinguished the 
course of their policy in respect to that odious traffic. 
He was also instructed to say, that the admission of a 
right in the officers of foreign ships of war to enter and 
search the vessels of the United States, in time of peace, 
under any circumstances whatever, would meet the uni- 
versal repugnance of the public opinion of the country ; 
that no such right could be conferred by treaty, with 
any hope that it would be ratified by the advice and 
consent of the senate ; that the search by foreign offi- 
cers, even in time of war, was so obnoxious to the feel- 
ings of the country, that nothing could reconcile them 
to the extension of it to a time of peace, however quali- 
fied or restricted. Here, our system, its peculiarities, the 
power and influence of the people, of the popular voice, 
was seen and felt. The course of the country on this 
and on all similar occasions, was and has been, open, 
manly, and frank. We said then, as w T e say now, our 
morals, our duty, our sense of right and humanity is, and 
ever must be, in our keeping. 

The right of search, in its other aspect, as claimed by 
Great Britain, that of taking its own seamen from our 
ships, the right of impressment would seem to be unob- 
jectionable, as an abstract proposition. Why should the 
United States employ the subjects of other countries in 



THE SCIENCE OF GOVERNMENT. 61 

its ships, in its service, and set up a right, an immunity 
so to do. They do not, and should not assert such right ; 
but they say, and rightfully, to the party which attempts 
to redress its wrongs, or to assert its rights in this mode, 
you cannot take the law into your own hands. If wrong 
has been done by the United States, it shall be compen- 
sated ; the nation, in its sovereign capacity, is the dispenser 
of its own justice ; it will not do, and cannot suffer 
wrong ; it cannot leave to the casual, irregular, and acci- 
dental arbitrament of another, the redress of its sup- 
posed wrongs. In this particular, and upon this subject, 
it may well be said, our system, our principles, have ex- 
erted an influence, which has not been surpassed by that 
of any other nation. The right of exemption, the immu- 
nity from search, has been conceded by France, in a treaty 
made with the United States. England has not yielded 
the position, so far as I know, by express stipulation, but 
her statesmen have yielded the pretension. It may now 
be regarded as settled, as a well established principle of 
international law, that the right of visitation and search, 
in time of peace, under any pretext, cannot be sustained ; 
that the flag of every country, in time of peace, must be 
regarded as a safeguard and protection to those over 
whom its folds are spread. In the assertion of this prin- 
ciple, in the ascertainment of neutral rights, the United 
States and its system have done much. The freedom 
which American citizens boast as their inheritance, the 
liberty regulated by law, which is the result of their sys- 
tem, have done much, have had an influence upon the 
institutions, upon the thoughts of other nations. It is 
for you to say, whether you will, by holding fast to your 
integrity, to your principles, to your system, continue to 
give force and effect to this influence. You must answer 
this for yourselves ; not by your professions, but by your 
conduct, by an adherence to the union, by which your 



62 THE SCIENCE OF GOVERNMENT. 

political rights, as one of the nations of the earth, have 
been recognized and upheld, without which they must in- 
evitably become the sport of every wind. The examina- 
tion which I have made of our system, in its treaty nego- 
tiations, has increased in my mind the importance of 
maintaining our free institutions. It has disclosed its 
power and adaptation to any and every well educated, 
intelligent, well disposed people. God grant that it may 
be perpetual! 



LECTURE III 



THE EXTERNAL POWER OF THE FEDERAL GOTERXMESX — AMBASSADORS. — THE WAR - 
MAKING POWER.— THE ACQUISITION OF TERRITORY. 



The relation of nations is in its character individual. 
It is the intercourse of government with government ; it 
is entirely distinct from the privileges which a nation 
within its own territory, as matter of comity or contract, 
may extend to the citizens of another. Upon this ground, 
a nation does not, de jure, officially or judicially know 
the internal character of the government, or of the insti- 
tutions of other nations. A nation learns these particu- 
lars, so far as it may be fit and essential to learn them, so 
as to determine whether the condition of any particular 
nation is such as to render an intercourse with it practi- 
cable or desirable, and only so far as may be essential to 
determine whether political or commercial arrangements 
can be made, with a reasonable certainty of the existence 
of some power or authority adequate to make, to perform 
them. Whenever governments which exercise an abso- 
lute power, negotiate with each other, they may contract 
at pleasure. Not so when limited governments contract 
with each other, or with absolute governments. In such 
case, the unlimited or absolute government must regulate 
its official intercourse so as to conform to the construction 
and limited power of the government with which it con- 



64 THE SCIENCE OF GOVERNMENT. 

tracts. The external power of a government is, there- 
fore, naturally and ordinarily executive in its character, 
and is exercised by the person or department which is in- 
trusted with its political duties or associations. The 
treaty-making power in its exercise, as has been shown, 
is not confided exclusively to the executive, but is sub- 
ject to the consent of an independent body, (a portion of 
the legislative department,) and may, in some instances, 
as has been shown, be controlled or defeated by the ne- 
glect or refusal of the legislative department to furnish 
the means of execution. The same distrust, or caution, 
the same limitation of power, is manifest in the appoint- 
ment of diplomatic and commercial agents. 

By the constitution of the United States, the president 
has power to nominate, and, by and with the advice and 
consent of the senate, shall appoint ambassadors and 
other public ministers and consuls. During the recess of 
the senate, he may fill any vacancy which may occur 
in such offices; and appointments thus made may con- 
tinue until the end of the next session of the senate. 
The president has the exclusive power to receive ambas- 
sadors and other public ministers from other nations, 
accredited to the United States. This discrimination is 
worthy of note.* The character of a foreign minister is 
in accordance with the character of the sovereignty which 
he represents ; his appointment is the exercise of an act 
of sovereignty. The nation to which he is accredited 
cannot regard the mode of his appointment as material 
to itself. The character of a minister sent from a coun- 
try is material to the party by which he is sent. He may 
discredit his principal, may endanger the peace of his 
country, and be the means of producing disastrous . collis- 



* Constitution of United States, art. ii. sections 2 and 3. 



THE SCIENCE OF GOVEENMENT. 65 

ion. These difficulties are obviated, as the senate is 
required to pass upon the fitness of those delegated to 
represent the sovereignty of the United States and its 
institutions at foreign courts. 

The privileges and duties of ambassadors and other 
public ministers, the matters which may rightfully be 
the subject of diplomatic correspondence, are not con- 
ferred or regulated by local or municipal law, but by the 
law of nations. In this particular our system has no 
peculiarity, but its influence is felt abroad through our 
diplomatic agents and correspondence. Prior to the 
fifteenth century, the intercourse of nations with each 
other, was irregular and casual. During that century 
and the next succeeding, it assumed a different character, 
became more frequent, regular, and permanent. During 
the period referred to, combinations and alliances were 
entered into between the European powers; some of 
which were for peaceful, some for warlike purposes. 
These gave rise to alliances, which to some extent have 
been continued to the present time, which were entered 
into to maintain a supposed or assumed balance of 
power, to prevent the acquisition by one nation of too 
much territory, or the attainment of a power not easily 
resisted, or which might become dangerous and alarming. 
These alliances were entered into by the executive, by 
the governments as such, acting independent of the 
people, and not as the representatives of the people, or 
of their will. As these alliances and combinations had 
no direct and immediately perceptible bearing upon the 
daily individual or domestic life of the people, they ope- 
rated ultimately as the means of oppression, and as the 
means of sustaining, in different governments, the exist- 
ence of an absolute power. In the seventeenth century, 
Louis XIV., by his diplomacy, added to his absolute 
power no less than by his arms, and by the wars in 





66 THE SCIENCE OF GOVERNMENT. 

which he constantly engaged. "With his death, the 
power of the crown, which he had, for the time, accumu- 
lated and enlarged, was diminished, because France then 
had no internal institutions of sufficient capacity to up- 
hold it. History is replete with instances showing that 
the power of the crown, of kings and of governments, is 
enlarged or diminished, is exercised for good or for evil, 
in proportion to the stability and permanence of their in- 
ternal institutions, in proportion to the intelligence and 
the power of the people, whose progress, refinement, and 
elevation is the standard, by which the progress of 
society is, ever has been, and ever must be, measured* 
These alliances have given opportunity for an inter- 
change between nations of their respective agents ; have 
produced, in fact, the establishment of an international 
institution or system of diplomacy. Some of these agents 
are for political, others for commercial purposes. Am- 
bassadors and other public ministers may be regarded as 
political agents. Some are intrusted with duties of a 
general and permanent character, others with those which 
are special. Consuls and their deputies are the commer- 
cial agents of the nations which they represent. Public 
ministers are regarded as the representatives of the 
sovereignty by which they are respectively appointed, 
and although resident in the country to which they may 
be accredited, they are not amenable to its laws or juris- 
diction, civil or criminal. They are regarded as having 
an extra-territorial character and position. The immu- 
nities extended to them are the immunities of their prin- 
cipals, whose interests would be, or might be, defeated or 
injured, if the agents were subject to any law or control, 
except the law and control of the master. Their servants, 



Guizot on Civilization, p. 238 and 295, Eng. edition. 



THE SCIENCE OF GOVERNMENT. 67 

retinue, and assistants are protected. They are allowed 
to enjoy at their residences such religious rights and cere- 
monies as may be consistent with their individual views 
and belief, for the benefit and improvement of those 
attached to the embassy. These are some of their pri- 
vileges, from which the character of, and the principles 
upon which, all their rights and immunities are founded 
may be deduced. These rights and immunities exhibit 
the extent and character of the civilization which the 
most prominent and powerful nations of the earth have 
attained. The effect and influence of which are reflected 
from and upon the communities by which such liberal, 
enlarged, and sound principles of reason and morality 
have been established* Notwithstanding the rights of 
an ambassador are now well defined and understood, they 
have not always been regarded, not always understood, 
as they now exist. Many gross violations have occurred. 
In the time of Queen Anne, an ambassador of Peter the 
Great w T as arrested in the streets of London for a debt of 
fifty pounds. He complained to the queen and to his 
own government. The persons engaged in his arrest 
were examined and imprisoned. The czar of Russia 
requested that the sheriff and his assistants should be 
put to death, to which the queen replied, that she could 
inflict no punishment on any the meanest of her subjects, 
unless warranted by the law of the land ; and, therefore, 
was persuaded that he would not insist upon impossi- 
bilities. An act was introduced in parliament and passed, 
by which such violations of the law of nations were sub- 
jected to severe penalties. A copy was engrossed upon 
parchment and sent to the monarch, whose agent had 
been thus improperly arrested. This instance is a forcible 



* Wildman, Law of Nations, vol. i. p. 78, et seq. As to consuls, see The 
Bello Corrunes, 6 Wheat. Rep. 152 ; Davis v. Packard, 7 Pet. S. C. Rep. 276. 



68 THE SCIENCE OF GOVERNMENT. 

illustration of the beauty and power of limited institu- 
tions, no less under a monarchy than it would have been 
under a republic. It exhibits the reason and fitness upon 
which all law is or should be founded. 

A nation which has friendly relations with another, is 
bound to receive a minister accredited to it, unless some 
reasonable and proper objection can be made to the per- 
son accredited, or to his mission. The reception of a 
minister by the government to which he is accredited, is 
in effect an acknowledgment of the sovereignty and po- 
litical existence of the power from and by which he is 
sent, upon the plain and simple ground, that an agent 
cannot exist which has no principal. The privileges of 
an ambassador continue not only during his residence in, 
but during his journey to, and return from, the country 
to which he is commissioned. So far as I have seen, the 
powers of an ambassador are said, by writers upon the 
subject, to cease upon the death of the sovereign to which 
he is sent, or by the death of the sovereign by which he 
is sent. 

In some instances this may be so, but as a general 
proposition, it is not in my judgment sound. It is true, 
when a principal dies, his agent cannot continue to act ; 
so when the principal dies, with which an agent of 
another is authorized to negotiate, no person exists with 
whom to conduct the agency, and the power cannot be 
exercised. This principle of reason and law cannot be 
applied to the case of an ambassador, or other public 
minister, who is not regarded as the representative or 
agent of the natural person who is king or president, but 
as the representative of government, which does not 
cease to exist, or lose its sovereignty, because its head or 
principal officer may have deceased. The duties of an 
ambassador, the character of the services which he is 
expected to perform, are well described in a circular 



THE SCIENCE OF GOVERNMENT. 69 

prepared by the government of the United States, for 
the guidance of its diplomatic agents. In this circular 
it is said, a Amongst the most important general duties of 
a minister, or other diplomatic agent of the United States 
in foreign countries, is that of transmitting to his own 
government accurate information of the policy and views 
of that to which he is accredited, and of the character 
and vicissitudes of its important relations with other 
powers. To acquire this information, and particularly to 
discriminate between that which is authentic and that 
which is spurious, requires steady and impartial observa- 
tion, a free, though cautious correspondence with the 
other agents of the United States abroad, and friendly 
social relations with the members of the diplomatic body 
at the same place. In their correspondence with the 
department of state, besides the current general and 
particular politics of the country where they are to 
reside, the diplomatic agents of the United States will 
be mindful, as they may find it convenient, to transmit 
information of every kind relating to the government, 
finances, commerce, arts, sciences, and condition of the 
nation, not already known, and which may be made use- 
ful to the United States. Books of travel containing 
statistical or other information of political importance, 
historical works not before in circulation, authentic maps 
published by authority of the state, or distinguished by 
extraordinary reputation, and publications of new and 
useful discoveries, will always be acceptable acquisitions 
to the department." :;: 

As a compensation for the immunities granted to pub- 
lic ministers, from respect to, and as matter of right in, 
their sovereigns, the persons so employed are expected 
to demean themselves in conformity with their dignity 

* Elliot, Diplomatic Code, vol. ii. pp. 390, 391. 



70 THE SCIENCE OF GOVERNMENT. 

and position. They are not at liberty to meddle or inter- 
vene in any manner in the business, institutions, or local 
politics of the country to which they may be accredited. 
As already said, they enjoy exterritoriality by which 
they are considered to live out of the territory in which 
they really reside ; this privilege should not be abused, or 
made the occasion of creating feuds or dissensions in the 
country, in which they enjoy such immunity. If a min- 
ister is regardless of his duty, he may be dismissed ; if he 
violates the law of the country where he is, complaint 
and application for redress should be made to the sove- 
reignty he represents. 

An instance of this character occurred soon after the 
adoption of the federal constitution. The proclamation 
of neutrality made by President Washington was disap- 
proved by many citizens, and by a portion of the press, 
upon an assumption that it was a violation of the obliga- 
tions which the United States had assumed in favor of 
France. The country was excited, and its stability seem- 
ingly endangered by its own citizens, actuated, as they 
supposed, or assumed to suppose, by motives of justice to 
their country and its neighbors. In this condition of 
things, Genet, ambassador of France, assumed the extra- 
ordinary and unwarrantable authority to impower the 
French consuls throughout the United States, to act as 
courts of admiralty for trying and condemning such 
prizes as the French cruisers might bring into American 
ports. Under this assumed authority, which was a mani- 
fest and bold violation of the law of nations, a gross vio- 
lation of the duty of the minister, vessels were seized by 
French armed ships, and brought into the ports of the 
United States for condemnation. 

Our government remonstrated, without avail, to the 
minister who had forgotten his station and its duties. He 
persisted, made an appeal to the American people 



THE SCIENCE OF GOVERNMENT. 71 

through the press, and by means of his personal inter- 
course with them, addressed the president of the United 
States directly, instead of submitting his communication 
to and through the secretary of state, to whom all diplo- 
matic agents should direct their official correspondence. 
A minister in this particular must conform to the pleas- 
ure and will of the country to which he is commissioned. 
The conduct of Genet, in these and in other particulars, 
was so gross, that the United States, through its minister 
at France, requested his recall. This had no effect upon 
his deportment, and his dismissal was recommended by 
some of the advisers of the president; by other advisers, 
this course was resisted as harsh and unnecessary. Wash- 
ington yielded, against his inclination, to the milder coun- 
sel, and thereby compromised the self-respect of the 
nation. After some months had elapsed, subsequent 
to the request for a recall, France, in justice to itself, 
in justice to the law of nations, and to the decent 
respect due to this country, recalled its minister who had 
violated the sovereignty of our territory* In September, 
1808, during the presidency of Thomas Jefferson, the 
reception of Don Onis, the minister of Spain, was refused, 
by reason of the insurgent condition of Spain. On the 
5th of May, 1808, Charles IV. ceded all his titles to Spain 
and its dependencies to Napoleon. The authority and 
title of Napoleon was resisted by those who were in favor 
of the old royal family. By treaty made December 8th, 
1813, Napoleon surrendered his supposed title to Ferdi- 
nand VII. of Spain. In 1815, Don Onis was received by 
the executive as minister of Spain. In 1818, the recep- 
tion of a commercial representative of the republic of 
Venezuela was refused, because his name had been affixed 



* Hildreth, Hist, of United States, 2nd series, vol. i, ch. 6 ; Ibid. vol. ii, p. 90 ; 
2 Elliot, Diplomatic Code, 14, 15, 636. 



72 THE SCIENCE OF GOVERNMENT. 

to a paper drawn up in the United States purporting to 
be a commission to a public officer for undertaking and 
executing an expedition in violation of the laws of the 
United States, and also because he had signed a paper 
insulting to the government. 

The principles applicable to public ministers, as recog- 
nized by the law of nations/ to some of which reference 
has been made, have been acknowledged and upheld by 
the laws of the United States. The maintenance of these 
principles has been confided to the federal government, 
so as to preserve uniformity in their administration, so as 
to prevent any embarrassment in the external intercourse 
and relations of the country. The constitution of the 
United States provides, " that in all cases affecting ambas- 
sadors, other public ministers and consuls, the supreme 
court shall have original jurisdiction." 

A statute of the United States provides, that the 
supreme court shall have exclusively all such jurisdiction 
of suits or proceedings against ambassadors, or other pub- 
lic ministers, or their domestics, or domestic servants, as 
a court of law can have or exercise consistently with the 
law of nations; and original, but not exclusive jurisdic- 
tion, of all suits brought by ambassadors or other public 
ministers, or in which a consul or vice-consul shall be a 
party. By another statute it is provided, u that if any 
writ or process shall at any time be sued forth, or prose- 
cuted by any person or persons, in any of the courts of 
the United States, or in any of the courts of a particular 
state, or by any judge or justice therein respectively, 
whereby the person of any ambassador, or other 
public minister of any foreign prince or state, au- 
thorised and received as such by the president of the 
United States, or any domestic, or domestic servant, of 
any such ambassador, or other public minister, may be 
arrested or imprisoned, or his or their goods or chattels 



THE SCIENCE OF GOVERNMENT. 73 

be distrained, seized, or attached, such suit or process shall 
be deemed or adjudged to be utterly null and void to 
all intents, construction, and purposes whatsoever." 

In addition to these provisions, heavy penalties are im- 
posed upon any person, who shall violate any safe con- 
duct or passport duly obtained and issued under the 
authority of the United States, or shall assault, strike, 
wound, or in any other manner infract the law of na- 
tions, by offering violence to the person of an ambas- 
sador or other public minister* 

The supreme court of the United States, in its adjudi- 
cations upon these matters, in discussing the rights of 
ambassadors, is guided by the law of nations. In one 
case the court say, should one sovereign enter the terri- 
tory of another, with the consent, with the knowledge 
and license of its sovereign, expressed or implied, he does 
not thereby subject himself to its jurisdiction. Upon 
the same principle, a public minister, who represents his 
sovereign, is not within the jurisdiction of the sovereign 
at whose court he resides.f These principles have not 
been extended to consuls, who are regarded as commer- 
cial and not diplomatic agents, to the same extent as 
they are applied to ministers. Consuls, however, enjoy 
immunities equivalent, so far as their relation to the 
duties which they are required to perform render them 
essential. Consuls have power to claim the rights of pro- 
perty under some circumstances, which appertain to the 
citizens of the country which they represent, to institute 
legal proceedings in relation to such rights, to watch over 
their interests, wherever the pursuits of commerce may 
draw them, or the vicissitudes of human affairs may force 
them. | They have the protection of the federal juris- 

* Stat, at Large, U. S., vol. i. pp. 18, 80, 117, 118. 

f The Schooner Exchange v. McFadden, 7 Cranch, 116. 

t The Bello Corunnes, 6 Wheat. Rep. 152. 

10 



74 THE SCIENCE OF GOVERNMENT. 

diction and its courts, in the assertion or defence of their 
civil rights ; they are not above or beyond the civil or 
criminal jurisdiction of the country in which they reside* 

It is common for a sovereign to employ as consuls the 
subjects or citizens of the country in which they are to 
be employed. No serious difficulty or objection can arise 
from this course ; it may sometimes be a convenience. 
It is also competent for a sovereign to select as ambas- 
sador or public minister a person who is not his subject, 
but is a citizen of some other country. He cannot, for 
such purpose or agency, select a subject or citizen of the 
country to which the minister is to be accredited, without 
the consent and approbation of the sovereign to which 
he is accredited. Whether the president of the United 
States may receive a citizen of this country, as the 
minister of a foreign government, and concede to him 
the immunities of the station, and thereby enable a 
citizen to throw off his allegiance, may be regarded as 
doubtful. In my judgment, a citizen cannot, under our 
system, be thus successfully expatriated for the time being, 
and shielded from the power of the laws and institutions 
of his country. 

I now proceed to a brief consideration of another 
external power of the federal government, the war-mak- 
ing power. This power, by the constitution of the United 
States, is conferred upon the legislative department. 
Congress has authority to declare war, grant letters of 
marque and reprisal, and make rules concerning captures 
on land and water ; to raise and support armies, but no 
appropriation of money to that use shall be for a longer 
term than two years; to provide and maintain a navy. 
It may also provide for the organizing, arming, and dis- 



* Davis v. Packard, 6 Peters, S. C. Rep. 41 ; same case, 7 Ibid. 276. 



THE SCIENCE OF GOVERNMENT. 75 

ciplining the militia, and for governing such part as may 
be employed in the service of the United States, reserv- 
ing to the states the appointment of the officers * 

In the construction, in the exercise of this most deli- 
cate power, the peculiarities of our system are apparent. 
Checks and balances are provided, designed to prevent 
any hasty or unwise exercise of it. The power of the 
people, as individuals, is clearly and distinctly seen and 
protected. It may be said, that they exercise the ulti- 
mate judgment. The most important peculiarity which 
is exhibited arises from the fact, that the war-making 
power and the peace-making power are not exercised by 
the same department. Congress may declare war. The 
president, with the consent of the senate, may make a 
treaty by which the war shall be determined and peace 
restored. Supplies cannot be granted for more than two 
years, unless they shall be renewed by new enactments ; 
during which period of time, an election of new members 
must take place for the house of representatives, and by 
such election the policy of the country may be changed, 
and a refusal of supplies for a continuance of the war 
take place ; at the same time one third of the senate will 
be composed of new members. Another feature is found in 
the respect paid to the militia, by authorizing the several 
states to appoint its own officers, so that the citizen, when 
called into the combats of his country, is, to some extent, 
under the protection and kindness of his neighbor and 
fellow-citizen, the business of whose life is not war but 
peace. These checks and balances demonstrate our 
policy, our system ; they show that the object of war in 
this country is not the maintenance of a balance of 
power ; is not to enlarge or aggrandize our empire, or to 



* Constitution of the United States, art. i. sec. 8. 



76 THE SCIENCE OF GOVERNMENT. 

exhibit the star-spangled banner upon the battlements 
of a foreign citadel. 

These checks and balances exhibit a far more noble 
purpose. They exhibit a purpose to maintain and pre- 
serve our rights as a nation, the perpetuation of our in- 
stitutions, of liberty regulated by law. The purpose is 
self-defence, a protection from the encroachments, from 
the intervention of others, upon and with our domestic 
affairs. The provisions in our system to which reference 
has been made, are equivalent to a declaration on our 
part, that w T e desire to cultivate and extend our friendly 
relations and intercourse with and to all the nations of 
the earth. 

The war of the revolution was justified, and is justified, 
upon principles which were, and are, consistent with the 
desire of the American people to suffer, to do, no wrong. 
It was, in fact, approved in the opinions and judgments of 
the most considerate statesmen of England during its 
existence, so far as they could rightfully approve an 
opposition and resistance to their government and its 
policy. The war of 1812 was justified at the time by 
those who advocated and supported the policy of the 
country upon similar principles ; and, at this time, it may 
be regarded as justified, and its necessity sustained by 
the general judgment of the country. It operated as 
the means of the ultimate abandonment by Great Bri- 
tain, of a supposed right to impress the seamen of our 
ships, of the abandonment of her claim to exercise, in 
time of peace, the right of search. 

I am not forgetful of the fact, that our country has 
been engaged in other and more recent wars. They 
have not been so mellowed by time or distance as to be 
the fit subject of comment here. I leave them untouched, 
to be discussed at some other time, and elsewhere. In 
the short survey which has been shown of the war-mak- 



THE SCIENCE OF GOVERNMENT. 77 

ing power, you will readily perceive a distrust of, an 
intent to guard against, the executive department. The 
power of which I have spoken, regarded in its ordinary, 
or, if I may so say, its natural character and purpose ap- 
pertains to the executive power of a country, and it has 
been so considered by writers upon political economy. 
The reason is, the exigencies of the state may be urgent 
and immediate. Whenever and wherever the opera- 
tions of a state are conducted, and its institutions are 
established for the benefit of the state, as such, indepen- 
dent of the interests of the people as individuals and 
citizens, the power must of necessity be in the executive, 
in the head of the nation, so as to admit its exercise 
unrestrained and unrestricted. In the present condition 
of the civilization and progress of society, the state is 
regarded as identical in its character and interests with 
the character and interests of the people. It is assumed, 
that man was not created for purposes of state, but 
governments are, or should be, made and established for 
man. This fact is the all-pervading principle of our 
system. It is manifest in every part of its construction. 
Equally apparent is an intent or design to guard against 
any sudden or impulsive action of the people which pas- 
sion or caprice might produce. 

I now proceed to inquire, whether any provision is 
made in and by our system for the acquisition of terri- 
tory. This is a matter or question upon which politi- 
cians upon the one side and upon the other have disagreed, 
adopting actions and opinions in conformity with some 
supposed temporary party policy. It is equally true, 
that jurists and statesmen, who have examined the sub- 
ject without reference to party considerations, have enter- 
tained and expressed opposite views. My intention and 
effort is, and will be, to regard the system as it is, unin- 
fluenced by any theory which might be considered con- 
venient or desirable. 



78 THE SCIENCE OF GOVERNMENT. 

Territory is acquired by discovery, by conquest, or by 
purchase. It is the right of society to prescribe rules by 
which property may be acquired and preserved. The 
title to land must be regulated entirely by and upon the 
law of the nation within whose jurisdiction it is situate. 
Those who profess to speak and act only as moralists may 
say, that land is especially the gift of God, and, therefore, 
a nation or an individual, has so much right to it as has 
any other nation or individual, and can acquire no 
greater. This is an unsafe mode of reasoning, and forms 
no part of any system of political economy known to 
civilized nations.* 

Upon principles of abstract right, independent of 
society, independent of the progress of civilization and 
of Christianity, it would seem that the untutored native 
or occupant of a country, dependent for his education, 
for his knowledge of right and wrong upon the teachings 
of the Great Spirit, should not be disturbed, should not 
be compelled to yield to the progress and convenience of 
those who, in their own opinion, are more worthy, more 
competent to carry into effect the supposed purpose of 
the Creator in the creation of man. These principles 
have not been altogether acted upon, or entirely disre- 
garded. The acquisition of territory hy discovery has 
been regarded as a legitimate mode, and certain results 
or rights derived therefrom have been recognized. " On 
the discovery of the American continent, the great 
nations of Europe were eager to appropriate to them- 
selves so much of it as they could respectively acquire. 
Its vast extent offered an ample field to the ambition and 
enterprise of all ; and the character and religion of its 
inhabitants afforded an apology for considering them as 
a people over whom the superior genius of Europe might 

* Johnson v. Mcintosh, 8 Wheat. Rep. 543. 



THE SCIENCE OF GOVERNMENT. 79 

claim an ascendency. The potentates of the old world 
found no difficulty in convincing themselves that they 
made ample compensation to the inhabitants of the new, 
by bestowing on them civilization and Christianity, in 
exchange for unlimited independence. But as they were 
all in pursuit of nearly the same object, it was necessary, 
in order to avoid conflicting settlements, and consequent 
war with each other, to establish a principle, which all 
should acknowledge as the law by which the right of 
acquisition, which they all asserted, should be regulated 
between themselves. This principle was, that discovery 
gave right to the government by whose subjects or by 
whose authority it was made against all other European 
governments, which title might be consummated by 
possession." 

Discovery followed by possession gives to the nation 
making the discovery the sole right of acquiring the soil 
from the natives, and establishing settlements upon it. 
The right of discovery, as described and as exercised, 
when applied to an inhabited country, is one of force. 
This right is modified and softened in its exercise, by 
nations professing the principles of Christianity, so far as 
it can be, without defeating the purpose of the discoverer. 

In the settlement of this country, in the establishment 
of the relations which grew out of, and resulted from 
such settlement, the rights of the original inhabitants 
have not been entirely disregarded, although to a great 
extent they have been diminished and impaired. They 
were admitted to be the rightful occupants of the soil, 
with a legal as well as just claim to retain possession of 
it, and to use it according to their own discretion ; but 
their rights to complete sovereignty, as independent 
nations, were diminished, and their power to dispose of 
the soil at their own will to whomsoever they pleased, 
was denied by the original fundamental principle that 



80 THE SCIENCE OF GOVERNMENT. 

discovery gave exclusive title to those who made it. 
Spain, France, Holland, and England severally claimed 
distinct rights upon the continent of America, as discov- 
erers. These rights to a very large extent have ceased, 
and now are enjoyed by the United States. In the treaty 
of 1783, made by the United States with Great Britain, 
she relinquished all her claim to the government, pro- 
priety, and territorial rights, and every part thereof, in 
and to the territory of her former colonies. By this 
grant, political power, the right of sovereignty, so well 
as the right of soil was conferred, and the original inhab- 
itants or occupants were not consulted or made parties 
to the arrangement by which their rights, by which their 
title to protection were transferred from one nation to 
another. By similar grants, the European governments 
are almost entirely excluded from North America. In 
this connection, it is proper to say, that our relations with 
the Indian tribes, has been as liberal and humane as it 
could have been without an abandonment of the rights 
of discovery to which we have succeeded. In all our 
treaties with them, they have been recognized as the 
rightful occupants of the territory; we have negotiated 
with them as domestic but dependent nations, have con- 
ceded to them our protection. In some of the treaties 
made by the United States with these tribes before the 
adoption of the federal constitution, it was stipulated 
that they might send a delegate to congress. Whether 
the privilege was in any instance exercised, I am unable 
to say* The Indian tribes are gradually but constantly 
receding, under a moral duress, from the rising to the 
setting sun. Such is the political right, such is the prac- 
tical result of discovery. The acquisition of territory by 



* The Cherokee Nation v. The State of Georgia, 5 Peters, Sup. Ct. Rep. 1 ; 
Worcester v. Georgia, 6 Peters, 515. 



THE SCIENCE OF GOVERNMENT. 81 

conquest, is simply the result of force, by which the 
country and its inhabitants are transferred, with or with- 
out their consent, from one jurisdiction to another. This 
right is continued by the force in which it had its origin, 
and determines with the cessation of force, unless the 
country, from which a territory may have been arrested, 
shall consent to a merger of the force, by a cession of the 
land and its sovereignty. 

The acquisition of territory in this mode is attended 
by some favorable and mitigating considerations. The 
conqueror respects the private right of the citizens of the 
conquered country to property. The original laws of 
the conquered country are in force, until new laws and 
rules shall be established by the conqueror, except so far 
as they may be inconsistent, and incompatible with the 
fundamental law of the nation by which the conquest 
shall have been made. By conquest the former sove- 
reignty is suspended, and so continues until restored by 
the conqueror, or until it is lost by the cession of the 
former proprietor, expressed by compact, or implied from 
his abandonment of all effort to regain his possession* 
Upon this branch of international law, the supreme court 
of the United States has vindicated and enforced the 
propriety of the humane principles upon which the law 
of conquest, in modern times, has been enforced. 

The court say, it is unusual, even in cases of conquest, 
for the conqueror to do more than to displace the sove- 
reign, and assume dominion over the country. The mod- 
ern usage of nations, which has become law, would be 
violated ; that sense of justice and of right, which is 
acknowledged and felt by the whole civilized world would 
be outraged, if private property should be generally con- 
fiscated and private rights annulled. The people change 

* The United States v. Hay ward, 2 Galli. Rep. 485. 
11 



82 THE SCIENCE OF GOVERNMENT. 

their allegiance ; their relation to their ancient sovereign 
is dissolved ; but their relation to each other and their 
rights of property remain undisturbed. A cession of 
territory by one sovereign to another, is never understood 
to be a cession of the property belonging to its inhabi- 
tants.* 

Another mode of acquiring territory is by purchase ; 
the course and effect of which is familiar, and need not 
be repeated. It gives rise to only one question of im- 
portance, which is of a moral character. This question 
is, upon what principle of right or reason can a sovereign, 
without necessity, upon his own motion, transfer a portion 
of his territory and its inhabitants to another jurisdiction 
against their consent. It is not essential to the purpose 
for which reference has been made to these different 
modes of acquiring territory, to discuss the question sug- 
gested. I have referred to them and to their principal 
incidents, for the purpose of inquiring whether the fede- 
ral or state governments can rightfully and without vio- 
lence to our system, acquire new territory, in either of 
the modes pointed out; and if these governments or 
either of them can so acquire territory, under what cir- 
cumstances it may be done. , 

The several state governments, when the federal con- 
stitution was adopted, had certain definite territory, the 
bounds of which were supposed to have been, de jure, 
well defined, and capable of demarcation. Whenever 
new states have been admitted, their territorial limits 
have been defined, in terms and by limits capable of 
ascertainment. 

The several states, as independent sovereignties, can- 
not acquire new and additional territory by discovery or 
by conquest. They cannot enlarge their several domains 

* The United States v. Perchman, 7 Peters' Rep. 86, 87. 



THE SCIENCE OF GOVERNMENT. 83 

in either of these modes. If such rights can be exer- 
cised under our system, they appertain to the national 
government. Equally clear it is, that the several states 
cannot by purchase extend their sovereignty, or that of 
the United States, over new territory, with or without its 
inhabitants. The construction and purpose of our sys- 
tem forbids. The clause in the constitution of the 
United States which regulates the admission of new 
states, in its effect, must be regarded as prohibitory of 
the acquisition by the several states of additional terri- 
tory, without the consent of congress.* In any and every 
discussion of the subject under consideration, the princi- 
ples of political economy, distinct from mere party poli- 
tics, should be regarded, as they are modified by our 
peculiar institutions. I refer to the acquisition of terri- 
tory and of its sovereignty, for the purpose and as the 
means of enlarging and extending our political rights 
and our sovereignty. In this sense and for such purpose, 
the several states have no right to acquire new and addi- 
tional territory. I do not intend to say, that a state gov- 
ernment cannot acquire the title, the right of property 
in and to soil, in and to land within its limits, or, in some 
instances, without its limits. This right may, undoubtedly, 
under some circumstances and for some purposes, be 
rightfully exercised. 

The question, considered with reference to the power 
of the federal government, must be determined by a con- 
struction of its constitution. This instrument, excluding 
the right of amendment and the power of revolution, 
cannot be enlarged or diminished by the united will of 
the people or by the united voice of the several states as 
sovereignties, or by both combined. It is the opinion of 
some individuals, that the constitution of the United 

* Constitution of United States, art. iv. sec. 3. 



84 THE SCIENCE OF GOVERNMENT. 

States should be construed with great strictness and 
exactness ; that no enlargement can rightfully result from 
any mere legal intendment or logical deduction ; that its 
language is to be literally construed* that no power, 
unless conferred in express terms, can be exercised. 
Some entertain a different opinion, and contend, that it 
should receive an open, liberal, and enlarged construction ; 
that it may, by intendment, by deduction, be made avail- 
able to carry out this or that purpose ; that this country 
is, in fact, an example and propounder of free institutions, 
of free principles ; that our system was and is designed 
to uphold these institutions and these principles at home 
and abroad ; that the genius of America has no limit. 
Neither of these positions are sound. 

The constitution of the United States is to be con- 
strued, its meaning and its powers ascertained, upon and 
by the same principles of construction, by and upon which 
the force and effect of any other instrument is to be 
ascertained and determined. These ^principles are well 
understood, although their application may be occa- 
sionally a matter of difficulty and embarrassment. In- 
struments are to be construed by an interpretation of the 
terms contained therein, by the subject-matter or pur- 
pose sought to be attained • by a consideration of the 
relation which the parties to the instrument bear to each 
other. These constitute the prominent elements of con- 
struction. The language of an instrument, as a general 
and primary proposition, is to be understood according to 
its natural, ordinary import, as received and recognized 
by those whose language it is. In some cases, it may 
have a technical meaning deduced from an artificial im- 
port given to it when used in explanation of the arts of 
science or law. The purpose of an instrument is to be 
accomplished and carried into effect, if it legally may be. 
Language will receive a liberal construction, whenever 



THE SCIENCE OF GOVERNMENT. 85 

such construction is essential to uphold public institutions 
and public right. On the other hand, when the purpose 
of an instrument is in derogation of private right, is to 
the prejudice of such right, a close construction is 
adopted. The relation which the parties to an instru- 
ment bear to each other, may be referred to and con- 
sidered for the purpose of ascertaining whether any pro- 
posed construction or result is or is not in harmony with 
the rights and duties naturally and ordinarily compatible 
with such relation, with such condition of the parties. 

The importance of the relation which contracting 
parties bear to each other, as a means by which to ascer- 
tain their relative rights, and the extent thereof, will be 
conceded, if you direct your attention to some of the busi- 
ness transactions of life with which you are conversant 
and familiar. An agent may, unless specially restricted 
and forbidden, employ such modes and means of action, 
b}' which to accomplish the purpose of his agency, as are 
commonly and ordinarily regarded fit and convenient to 
such procuration. A principal may ordinarily direct the 
action of his agent, may enlarge, diminish, or determine 
the agency at pleasure. A principal may create an 
agent with a power or authority attending it irrevocable. 
In such case, within the limit of the agency, the power of 
the principal cannot be regained, unless and until the 
object of the power is accomplished or compensated. 

The power of an agent may be enlarged, in some in- 
stances, by necessity. 

The master of a ship sent upon a foreign voyage is 
authorized to sail the vessel in the employment desig- 
nated by the owner, and is bound to return at the end of 
the voyage or other authorized period. In the course of 
such authorized employment, and before its contemplated 
determination, the ship, in some distant place, may be 
disabled, to such an extent and under such circumstances 



86 THE SCIENCE OF GOVERNMENT. 

as to authorize a sale of the vessel by the master ; in such 
instance the power of the agent, of the master, is from 
necessity enlarged, to an extent coextensive with the 
exigency of his condition, and of the property in his pos- 
session. It is not my intention, by this illustration, to 
approve a very common expression, that necessity knows 
no law, because it is certain that the law does not and 
cannot regard such necessity. The same principles are 
also applied to matters of trust. The trustee must fol- 
low the deed of trust, the charter or authority under and 
by which his trust may have been created or defined. 
He may, however, whenever he acts in the absence of 
special restrictions, employ the most convenient and 
suitable means of executing his trust. The power and 
authority of a trustee will be construed, unless some clear 
legal ground of objection exists, so as to uphold the intent 
and purpose of the trust. 

A fee-simple or perfect indefeasible title to land can- 
not ordinarily be acquired, except by the use of certain 
known technical terms. Notwithstanding the truth and 
propriety of this general position, if a trustee is charged 
with the performance of a certain duty clearly pointed 
out, and the estate granted to him for the purpose of the 
trust, if technically considered, is not sufficient for its 
accomplishment, the estate is enlarged by intendment, to 
prevent and avoid a failure of the trust, which might 
otherwise occur. A factor, intrusted by a foreign corre- 
spondent with the sale of goods, if not restricted, may sell 
upon credit, if such is the usage of similar agencies at the 
place of the residence of the factor. These principles, by 
which private agencies and private trusts are made avail- 
able and effectual, are applicable to public agencies and 
trusts. Upon a reasonable and legitimate application of 
these principles to public trusts, to the trusts of govern- 
ment, the question arises, Can the federal government 



THE SCIENCE OF GOVERNMENT. 87 

rightfully and constitutionally acquire new and addi- 
tional territory, new and additional sovereignty, and 
thereby enlarge its domain, for the purpose of increasing 
its sovereignty, its political power, or for the purpose of 
extending the area of freedom, of free institutions ? The 
same question may be proposed in different language, 
more decisive in its effect upon the mind. Suppose the 
government of Great Britain, entertaining the belief that 
its colonies upon the American continent are not worth 
the cost of preservation ; or for any other reason satis- 
factory to itself, should propose to sell and transfer its 
sovereignty in and over them to the United States for a 
stipulated sum of money, can the federal government 
make the purchase and assess its citizens by direct taxa- 
tion, or by applying the proceeds of the public lands, or 
by using other money in the treasury of the United 
States for such purpose ? The answer to this inquiry, in 
either form in which it has been stated, must most cer- 
tainly and unequivocally be, that the federal govern- 
ment has no such power derived from any express pro- 
vision in the constitution, or from any legal intendment 
which can be constitutionally deduced from its terms or 
from its purpose. Another mode of acquiring territory 
and its sovereignty, is by discovery. Citizens of the 
United States may discover some land, and take posses- 
sion thereof under circumstances which, by the law of 
nations, would authorize the United States to assert title 
as the first discoverer. Has the federal government 
power, under such circumstances, to assume and exercise 
its supposed right as discoverer, establish territorial or 
colonial governments dependent upon and subsidiary to 
its own jurisdiction, and ultimately admit the territory so 
discovered as a state of the union ? It is clear to my 
mind, that the constitution of the United States confers 
no such authority. In the instances suggested, the acqui- 



88 THE SCIENCE OF GOVERNMENT. 

sition of territory, by purchase in the one case, by dis- 
covery in the other, might be an advantage to the United 
States. Such acquisition would extend the privileges 
which our institutions are designed, are competent to 
confer. 

If the people, through their agent and representative, 
the government, or by an expression of opinion through 
the press, and voluntary conventions, are content ; if the 
several states as sovereignties are satisfied, why not 
accomplish a great and good purpose ? The people are 
the government, and their will is its law. Reasoning of 
this character may be adopted in abundance, and it may 
be plausible, and even satisfactory to many minds. In 
my view it is erroneous, fallacious, and dangerous. Our 
system, as I have repeatedly said, — and the proposition 
cannot be repeated too often, — is limited. It was estab- 
lished for our protection, and not for the protection, ele- 
vation, or advancement of other people, of other coun- 
tries, except so far as they may be enlightened, admon- 
ished, and improved by our moral example and influence. 
The will of the people cannot be known, cannot be 
exercised upon or through the government, except 
through and by the machinery and working of its insti- 
tutions, which they have established as checks upon 
themselves and upon the government. The power of 
congress to extend its sovereignty, to acquire new terri- 
tory, merely because such extension and acquisition 
would be convenient or desirable by conquest, has never, 
to my knowledge, been asserted. 

An examination of the federal system of government, 
will show that the acquisition of territory and sovereignty, 
is not in express terms authorized or suggested. It does 
not appear to be one of the objects for which the consti- 
tution was adopted. If the instrument is to receive a 
close, strict construction ; if its language is to be literally 



THE SCIENCE OF GOVERNMENT. 89 

understood, excluding every intendment which may be 
deduced from the general object of government, or from 
the peculiar situation in which the country may at any 
time be placed; then, the federal government cannot 
enlarge its territory, or extend its jurisdiction under any 
circumstances. Cases may arise in which such a result 
would be disastrous, and even might be fatal to the sys- 
tem. If this is the only theory which can be adopted, 
the action of the government in transactions which have 
passed, in several instances, cannot be sustained. Terri- 
tory has been acquired from Mexico, by conquest, per- 
fected by cession. The territory which constitutes the 
state of Louisiana was acquired by treaty made with 
France, 30th April, 1803, by which the then colony or 
province of Louisiana was ceded by the French consul 
to the United States, forever and in full sovereignty, with 
all its rights and appurtenances, as fully and in the same 
manner as they had been acquired by the French Repub- 
lic. In consideration of this cession, the United States 
paid to France eleven and a quarter millions of dollars, 
and agreed to pay certain debts due from France to citi- 
zens of the United States, which existed prior to the 30th 
of September, 1800. This territory, rightfully or wrong- 
fully, now constitutes one of the states of the federal 
union. This cession of territory put an end for the time 
being to controversy between the United States and 
France, added a beautiful and valuable tract, and removed 
the danger which might, and probably would have re- 
sulted from its continuation in the occupation of those 
who were alien in blood, alien to our institutions and 
interests. This cession was approved at the time by some 
portion of the community, by another condemned in 
terms of unmeasured severity. Its constitutional pro- 
priety was advocated and maintained upon the ground 
that u the people of the United States, in the establish- 

12 



90 THE SCIENCE OF GOVERNMENT. 

ment of its constitution, intended to provide for the com- 
mon defence, promote the general welfare, insure 
domestic tranquillity, and secure the blessings of liberty 
to themselves and posterity.* 

These words, which are found in the preamble to, and 
also in the constitution standing alone, cannot be regarded 
as a positive or an express authority to the federal gov- 
ernment to extend its territory or jurisdiction, under any 
and all circumstances. They may be considered, under 
some aspect or condition of things, as having a bearing 
upon the construction or purpose of other provisions, or 
upon the exercise and execution of certain admitted 
powers of the federal government. The acquisition of 
Louisiana was upheld by its advocates, under the power 
of congress to admit new states.f " New states may be 
admitted by the congress into this union ; but no new 
state shall be formed or erected within the jurisdiction of 
any other state; nor any state be formed by the junc- 
tion of two or more states or parts of states, without 
the consent of the legislatures of the states concerned, 
as well as of the congress. The congress shall have 
power to dispose of, and make all needful rules and 
regulations respecting the territory or other property be- 
longing to the United States." Such is the language of the 
constitution upon the subject of the admission of new states, 
and the management of territory belonging to the United 
States. An examination of the discussion upon the 
subject-matter of this provision, which was had in the 
convention by which the constitution was prepared, will 
show that it had not in its origin or purpose, any bearing 
upon the acquisition of new and additional territory. It 
was designed by those who made it, to regulate the terri- 
tory which at the time belonged to the United States or 

* Constitution of United States, art. i. sec. 8. f Ibid. art. iv. sec. 3. 



THE SCIENCE OF GOVERNMENT. 91 

to the several states. The discussion may be read in the 
Madison Papers * An examination of the provision, with- 
out reference to any supposed purpose or opinion which 
was entertained by those who prepared' it, will lead to the 
same conclusion. 

There are other provisions in the constitution to which, 
in this connection, no reference has been made, from 
which the power and authority of the federal government 
to acquire additional territory, and a consequent enlarge- 
ment of its sovereignty, must be derived, or it has no 
existence. These provisions do not in express terms, or 
in their primary and principal purpose, contemplate such 
acquisition, but may under particular circumstances be 
regarded as sufficient authority. The constitution pro- 
vides that the United States shall guarantee to every 
state in the union, a republican form of government ; and 
shall protect each of them against invasion, and against 
domestic violence.^ Congress has power to declare war, 
grant letters of marque and reprisals, and make rules 
concerning captures on land and water. J The president, 
by and with the advice and consent of the senate, two 
thirds of the senators present concurring, has power to 
make treaties.^ Congress is authorized "to make all 
laws which shall be necessary and proper for carrying 
into execution its express powers, and all other powers 
vested by the constitution in the government of the 
United States, or in any department or officer thereof." || 

These provisions are in terms general. The means by 
which the invasion of a state may be resisted and 
repelled ; the time when, and the purpose for which war 
shall be declared ; the implements of warfare which may 



* Madison Paper's, vol. ii. pp. 1240, 1241; Ibid. vol. iii. p. 1456, etseq.; 
Story on Con. U. States, book 3, ch. 27, Abridgment. 

t Constitution of U. States, art. iv. sec. 4. % Ibid. art. i. sec. 8. 

§ Ibid. art. ii. sec. 2. II Ibid. art. i. .sec. -S. 



92 THE SCIENCE OF GOVERNMENT. 

be adopted ; the circumstances under which a treaty may 
be made ; the stipulations and provisions which may be 
inserted therein, are undefined, are left open to the dis- 
cretion of those by whom they are to be used and 
adopted. They are not, however, without limit. They 
must be controlled by the purpose, by reference to other 
powers contained in the constitution, by the general 
policy and intent of the system of government, which 
the constitution has established. 

The discretion to be exercised in these matters may 
well be designated a legal, and not an indefinite or capri- 
cious discretion. The principles of construction ordi- 
narily applied in the ascertainment of the meaning of a 
private instrument, of the powers and duties of agents and 
of trustees, to which reference has been made, and illus- 
trations have been given, are to be applied to the provi- 
sions which have been recited. 

In the language of the supreme court of the United 
States, the government which has a right to do an act, 
and has imposed on it the duty of performing that act, 
must, according to the dictates of reason, be allowed to 
select the means ; and those who contend that it may not 
select any appropriate means, that any particular mode 
of effecting the object is excepted, take upon themselves 
the burden of establishing that exception. The powers 
of government were intended to endure for ages to come, 
to be adapted to the various crises of human affairs. To 
have prescribed the means by which government should 
in all future time execute its, powers, would have been 
to change entirely the character of the instrument. It 
would have been an unwise attempt to provide by im- 
mutable rules, for exigencies which, if foreseen at all, 
must have been seen dimly, and which can be best pro- 
vided for as they occur * 

* McCullock v. The State of Maryland, 4 Wheat. Rep. 316. 



THE SCIENCE OF GOVERNMENT. 93 

These principles are applicable to a consideration of 
the authority, actual or supposed, of the federal govern- 
ment, to enlarge its territorial limits and sovereignty. A 
territory, foreign to the union, adjoining a state which 
belongs to it, may be inhabited by a race of people bar- 
barous, uneducated, regardless of all law, human or 
divine. 

Such people may make constant inroads upon the 
citizens and property of such state to an extent which, if 
continued, might produce its destruction. 

In such case the federal government is competent to 
repel the invasion, and by its compact to preserve the in- 
tegrity of the several states, would be bound to resist, to 
repel it, and prevent its recurrence. 

A case of this description, of an urgent, of an extreme 
character, may arise, in which the preservation of a state 
of the union would require the conquest and subjection 
of an adjoining people, perfected by a cession, or by con- 
tinued forcible possession of its territory. Under the cir- 
cumstances supposed, the power and duty of the federal 
government is clear. If they are not, the government 
and its system are futile and useless. 

Self-preservation is a law of nature, of individual man, 
and of society, but it is something more than, and distinct 
from, mere convenience or ordinary necessity. Another 
state of facts may be supposed for the purpose of illustra- 
tion. A foreign government may have encroached upon 
our rights, disregarded our sovereignty, seized the ships 
and property of our citizens, in violation of the law of 
nations, not in a single instance only, not by accident, 
but by design, in repeated instances, and in disregard of 
objection and admonition on our part. 

The United States would be entitled to an indemnity 
for such injuries, to a compensation for the wrong im- 
posed. In such case, under such circumstances, it may 



94 THE SCIENCE OF GOVERNMENT. 

be fit and competent for the federal government to re- 
ceive such indemnity, such compensation, by a cession of 
the territory, or of some portion of the territory of the 
party offending. 

Other illustrations of the principle suggested will 
readily occur to those who examine and reflect upon the 
subject. 

If the cession of Louisiana and of other territory which 
has been annexed to our domain was rightfully and con- 
stitutionally accepted ; if additional territory and its 
sovereignty may be acquired by the federal government, 
it must be sustained under the treaty-making and war- 
making powers, or under one of them. These powers 
cannot constitutionally be applied for the mere purpose 
or pretext of such acquisition ; but when legally and pro- 
perly exercised, they may lead to such acquisition as an 
incident to, or result of, their rightful exercise. 

No danger can be apprehended from the view which 
has been presented, because, as has been shown, the 
war-making and treaty-making powers are distinct, and 
operate as checks upon each other. They cannot be ex- 
ercised so as to produce the acquisition of territory, with- 
out the concurring action of the executive and legisla- 
tive departments. 

The security, the interests of the country, cannot be 
destroyed or hazarded by the exercise of the authority 
under consideration, except by the corruption, inca- 
pacity, or want of fidelity of two departments, over which 
the people, through and by means of the executive 
franchise, have the ultimate power and control. 

The treaty by which Louisiana was ceded to the 
United States, exhibits the force and effect of the limita- 
tions which are found to exist throughout our entire 
system of government. By this treaty it was stipulated, 
in behalf of the United States, that the inhabitants of the 



THE SCIENCE OF GOVERNMENT. 95 

ceded territory should be incorporated in the union of 
the United States, should be admitted so soon as possible, 
according to the principles of the federal constitution, to 
the enjoyment of all the rights, advantages, and immu- 
nities of citizens of the United States, and in the mean 
time should be maintained and protected in the free en- 
joyment of their liberty, property, and the religion which 
they professed.* Upon the ratification of the treaty, an 
act of congress was passed for the admission of a portion 
of it into the union as a state,f which could not have been 
accomplished by an unaided exercise of the treaty-mak- 
ing power. Territory has been acquired by the United 
States from some of the Indian tribes by purchase, unin- 
fluenced by considerations similar to those which have 
operated, in the acquisition of territory, under other and 
different circumstances. Such acquisition from the origi- 
nal native inhabitants stands upon its own peculiar 
features. 

The federal government, as assignee of and as successor 
to the title of the first discoverers, has always considered 
the fee-simple in the soil, the supreme sovereignty over 
the territory occupied by the Indians, as vested in itself, 
the Indians having the right of possession, of occupancy 
without the power of sale, to any purchaser, except the 
United States or some person buying under its consent 
and approbation. These acquisitions, therefore, are to be 
regarded merely as an extinguishment of an incum- 
brance upon the land, as the release in fact of a qualified 
interest, which the occupants had held as matter of grace 
and humanity, and not as an absolute right. By these 
purchases the United States acquire no additional 
sovereignty. 



* Elliot, Diplomatic Code, vol. i. p. 110. 
t Stat, at Large, U. S., vol. ii. pp. 245, 701, 



96 THE SCIENCE OF GOVERNMENT. 

The United States, in its quasi corporate capacity, may 
acquire the ownership of soil within its own jurisdiction, 
and I have no doubt without its jurisdiction, for forts, 
arsenals, storehouses, or other public purposes, excluding 
or admitting, as the case may be, certain qualified rights 
of a state, whenever the soil is within its limits. 

The United States may also acquire, in payment of 
debts due to them, the ownership of soil. Purchases of 
this kind have been sustained upon principles and rea- 
soning identical with those which have been suggested 
as applicable to the acquisition of foreign territory and 
of its sovereignty. In a recent case, the supreme court 
of the United States have said, " to deny to the United 
States the power to take security for a debt due to them 
according to the usual methods provided by law for that 
end, would deprive the government of a means of obtain- 
ing payment, often useful, and sometimes indispensably 
necessary. That such power exists, as an incident to the 
general right of sovereignty, and may be exercised by 
the proper department, if not prohibited by legislation, 
we consider settled by repeated adjudications. The 
United States being a body politic, as an incident to their 
general right of sovereignty, have a capacity to enter 
into contracts and take bonds, by way of security, in 
cases within the sphere of their constitutional powers, and 
appropriate to the just exercise of those powers, through 
the instrumentality of the proper department, when not 
prohibited by law, although not required to do so by any 
legislative act ; and we think this same power extends to 
and includes taking security upon property for a debt 
already due.* 

It may be objected, that the acquisition of soil, as se- 
curity, or in payment of a debt, is not the same as the 

* Neilson v. Lagow and al. 12 How. Rep. 107, 108, and cases there cited. 



THE SCIENCE OF GOVERNMENT. 97 

acquisition of foreign territory, and of its sovereignty. 
Concede that the result in the two cases is not the 
same, but is more extensive in the one than in the other ; 
It is equally true, that the powers by which the results 
are produced, are different, and are exercised for different 
purposes ; each power is essential to the government. 

The same principles of construction, the same general 
course of reasoning, in relation to the existence and ex- 
ercise of these powers, may be applied and adopted, 
although when exercised they may lead to different results. 

A debtor may be liable to arrest for a certain sum, or 
amount of indebtment, and not liable for a less indebt- 
ment. Whether he owes the one or the other amount, 
may be determined by the same or a similar course of 
proof, by the same or a similar principle of reasoning, 
without reference to the result. 

In 1802, a convention between the United States and 
Spain was entered into, for the purpose of adjusting the 
several claims of citizens of the two countries upon each 
other, and upon their several governments. By a treaty 
between the same parties, made in 1819, East and West 
Florida were ceded to the United States, upon terms simi- 
lar to those by which Louisiana had been ceded by France, 
and the claims of citizens of the United States upon Spain 
were relinquished. In a controversy growing out of this 
cession, and connected with rights resulting therefrom, 
the acquisition of foreign territory was a matter of dis- 
cussion before the supreme court of the United States, 
which tribunal, in the course of its judgment, says, " the 
constitution confers absolutely on the government of the 
union the powers of making war and of making treaties ; 
consequently, that government possesses the power of 
acquiring territory, either by conquest or treaty." * 

* Elliot, Diplomatic Code, vol. i. pp. 411-417, 421 ; The American Ins. Co. v. 
Canter, 1 Peters, 542. 

13 



98 THE SCIENCE OF GOVERNMENT. 

This language of the court may be relied upon as an 
authority, as an adjudication in favor of the power of the 
federal government, under the powers named, at any 
time, for any purpose, rightfully to acquire the possession 
and sovereignty of foreign territory. 

It is evident, however, from an examination of the 
case, that the mind of the court was not directed to such 
an inquiry ; it was not the intention of the court to estab- 
lish or admit the existence of a power so extensive. 
An assumption in the federal government thus broad, can- 
not with propriety be regarded as well founded, or au- 
thorized by its system or its trusts. 

In this and the preceding lecture, the principal matters 
which concern the external power of the federal govern- 
ment, as exhibited in its political intercourse with other 
nations, have been brought to your notice. 

The external relations of any and of every country 
are delicate, are difficult of management ; they assume 
frequently an attitude dangerous to the peace of one or 
more countries, for which reason they are, in many gov- 
ernments, intrusted to the direction of a single individual, 
or to a small number of persons. 

In fact, the term government imports individuality, 
power, and authority ; its use by ourselves, or by others, 
does not present to the mind a qualified impression de- 
duced from a limitation upon its power and authority ; 
this is the result of examination and reflection. 

Although this individuality and unity of power, applied 
to others, applied externally, may be unobjectionable, it 
may result internally, in the destruction of civil right, of 
private interests, and in gross oppression. Our system is 
designed to prevent any such internal derangement, and 
at the same time to establish sufficient individuality and 
unity of power in the management of our foreign rela- 
tions, to protect us from wrong, to uphold our rights as a 
nation. 



THE SCIENCE OF GOVERNMENT. 99 

The examination which I have made of the system, its 
machinery and operations, in the particulars to which re- 
ference has been made, is sufficient to show that the pur- 
pose has been accomplished. 

The political character of the United States has also 
been shown. The character thus presented is worthy 
your study and attention, because you constitute a part 
of the power by which it has been established ; the peo- 
ple constitute the power by which alone it can be conti- 
nued and upheld. From the study which I recommend, 
you will learn that our policy is domestic, is peaceful, is 
progressive. Our belief is, that every people has a right 
to establish, to regulate its own internal affairs ; that no 
other people or nation have or has a right to intermeddle 
therein. The efforts of the United States heretofore 
have been, to maintain good faith toward, and kindly re- 
lations with, all other nations. 

The law of nations, the rights and duties of diplomatic 
agents, have been regarded, so far as they are consonant 
to reason, which is the foundation of all law. 

The acquisition of territory for the purpose of extend- 
ing the territory and sovereignty of the United States, 
does not constitute a primary or even secondary object 
of our union, and can be justified only under peculiar 
and extraordinary circumstances. Our mission is to gov- 
ern ourselves ; to exhibit a light upon an eminence which 
others may see, and, if they will, may be improved by its 
reflection. 



LECTURE IV 



THE LEGISLATIVE DEPARTMENT OP THE FEDERAL GOVERNMENT. — IT IS SUPREME 
AND EXCLUSIVE OF STATE LEGISLATION. — THIS POSITION CONSIDERED AS AP- 
PLIED TO TAXES, COMMERCE, NATURALIZATION, BANKRUPTCIES, COUNTERFEITING 
THE PUBLIC SECURITIES. 



In a classification of the powers of government, the 
legislative or law-making power has precedence. The 
power of construction, of ascertaining the meaning of a 
law, the power of execution, of carrying a law into 
effect, are powers equally independent and essential ; but 
these do not create or impose upon the citizen the obli- 
gations and restrictions under which he performs his 
duties as a member of society. 

The legislative department is the most extensive in its 
operations, because it creates and imposes upon the citi- 
zen the restrictions and limitations under which his 
powers and capacities, physical, mental, and moral, are 
developed for his individual advantage and improvement, 
and for the advantage and improvement of those with 
whom he may be said to be in competition. 

The science, the philosophy of our system, is peculiarly 
manifest in the construction of this department. It is 
more immediately, more directly dependent upon the 
power and will of the people, than is either of the other 
departments. The persons, the trustees who exercise the 
powers and trusts of this department, are more easily 



102 THE SCIENCE OF GOVERNMENT. 

reached, more frequently changed by the people. The 
law makers are no less operated upon by the vicissitudes 
of life, the changing course of human events, than are 
the people ; they are a part of the people. They cannot, 
therefore, establish for themselves any distinct and exclu- 
sive immunities. They have the same personal interest 
in an honest adherence to the system, to the charter by 
which their powers and trusts are defined, as any other 
portion of the community has, or can have. During their 
continuance in office, they act under the restraint and 
limitations imposed by written constitutions. It cannot 
be said, in language often but erroneously applied to the 
British Parliament, that it is omnipotent ; that its will, 
unlimited, is law. No such or similar extent of power is 
confided to the legislative department of the national or 
state governments, or to those who execute their trusts. 
The legislative department of the federal government 
is, in its effect and operation, to a large extent, external ; 
it is also internal. Its internal power is subsidiary to, 
and is designed to sustain and secure the external and 
foreign relations of the union, including, as part thereof, 
the intercourse of the several states and their citizens 
with each other. It is supreme in its action, whenever 
rightfully and constitutionally applied to the matters con- 
fided to the federal sovereignty. This supremacy is con- 
ceded by all who have discussed its powers. It is also 
exclusive. This has been doubted and denied. Upon 
this supposed exclusiveness of its power, a confusion has 
arisen, from a misuse and misapplication of the term 
" concurrent" from an apparent forgetfulness of the fact, 
that the adoption of the federal constitution did not 
operate a merger, or an extinguishment of the private 
rights of the citizen, or take away the sovereignty of the 
states. These remain, except to a limited extent, except 
so far as they are controlled, for the use of the federal 
government. 



THE SCIENCE OF GOVERNMENT. 103 

The exercise by the several states of powers similar to 
those exercised by the national government does not 
render them concurrent, and has no tendency to show 
that a particular power of the federal government is not 
exclusive. This exclusiveness of power, in many particu- 
lars and upon some subjects, has been universally con- 
ceded; in other particulars it has been resisted and 
rejected. A power cannot be supreme in a particular 
person, department, or government, which may be con- 
currently exercised by another independent person, 
department, or government. A concurrent power when 
once put in motion becomes exclusive, and continues 
until its purpose is accomplished, its force exhausted. 

The term concurrent is ordinarily and correctly applied 
to judicial proceedings, to courts and other departments, 
or officers acting under the same sovereignty, and not to 
the action or powers of distinct, independent sovereignties. 

In some estates, or titles connected with property, 
there are shifting or springing uses. But the existence 
of authority in an independent sovereignty is not shifting, 
springing, or casual, to be exercised or not at the plea- 
sure of a different government ; but it is permanent, and 
coextensive with the duration of the government in 
which the authority is found. The suggestion, that a 
statute or law of an independent sovereign state may be 
repealed, or that its obligation may be destroyed or sus- 
pended by a statute or law of a different jurisdiction, 
does not commend itself to the judgment. The power of 
a territorial or of a colonial government, may be dimin- 
ished or enlarged by the sovereignty under and by which 
the one or the other is protected. The several states and 
the national government sustain no such relation to each 
other. They are clothed with similar powers, but not 
with the same. Whether a particular subject belongs to 
the one or to the other, independent of express provi- 



104 THE SCIENCE OF GOVERNMENT. 

sion, may be determined by reference to the duties and 
purposes for which they have severally been created. 
These, I doubt not, will afford the means of solution 
which any contingency may require. An ambassador 
cannot be received or refused by a state government, 
because his agency does not appertain to any business 
intrusted to a state. 

An alien cannot be admitted to the benefits and privi- 
leges of an American citizen by state legislation. No 
one denies or doubts the principle involved, so far as it 
may be applied to these cases ; but it is doubted and de- 
nied when applied to other subjects, more directly bear- 
ing upon the ordinary pursuits of life. In considering 
the extent and character of the legislative department, it 
must constantly be borne in mind, that it should be co- 
extensive, and in harmony with the system of govern- 
ment established by the constitution. If this has not 
been accomplished, the system is defective. The powers 
of this department are defined in the constitution, and 
they cannot be exercised by any state or state depart- 
ment. Congress has no power to transfer its jurisdiction, 
or its discretion, and no state has authority to assume the 
one or the other. An analysis of the legislative depart- 
ment will exhibit the purpose and capacity of the fede- 
ral government, so far as they depend upon powers ex- 
pressly granted. These powers are stated in article 1, 
section 8, of the constitution of the United States. Some 
of these powers relate to the incidents and implements 
of war, to the foreign relations of the country, and have 
already been brought to your consideration. In addition 
to such powers, congress has authority to lay and collect 
taxes, direct and indirect ; to regulate commerce with 
foreign nations, and among the several states, and with 
the Indian tribes ; to establish an uniform rule of naturali- 
zation, and uniform laws on the subject of bankruptcies, 



THE SCIENCE OF GOVERNMENT. 105 

throughout the United States ; to coin money and regu- 
late its value ; to provide for the punishment of counter- 
feiting the securities and current coin of the United 
States ; to establish post-offices and post-roads ; to promote 
the progress of science and useful arts, by securing for a 
limited time to authors and inventors the exclusive 
right to their respective writings and discoveries ; to de- 
fine and punish piracies and felonies committed on the 
high seas, and offences against the law of nations ; to 
make all laws, which shall be necessary and proper for 
carrying into execution these powers, and all other 
powers vested by the constitution in the government of 
the United States, or in any department or officer there- 
of To render these powers available and secure from 
state interference, to accomplish the purpose of the union, 
the several states are prohibited from exercising, upon 
certain subjects, powers similar to those conferred upon 
the federal government ; in some other particulars, the 
states are absolutely prohibited from action. These pro- 
hibitions will be considered, when reference shall be made 
to the relation which the states bear to each other, and 
to the federal government. The powers which congress 
is authorized to exercise, and which have been recited, 
exhibit an intention to protect the several states and their 
citizens from foreign control or interference, to protect 
the states from each other, to protect the citizens in cer- 
tain particulars from state legislation, to secure to the 
citizens of other countries such privileges as may be con- 
ceded to them by treaty stipulation, by law, or comity. 

Some of these powers, by express provision of the con- 
stitution, must be so exercised as to produce throughout 
the United States, uniformity of action ; others, in rela- 
tion to which no such provision is found, from their char- 
acter and purpose, and upon principles which should regu- 
late all legislative action, must be so exercised as to pro- 

14 



106 THE SCIENCE OF GOVERNMENT. 

duce uniformity. The value of money coined under the 
authority' of the United States, should be the same in 
every state. Authors and inventors should be protected, 
without reference to the state of which they may be citi- 
zens. In these cases, and in some others, uniformity is 
required, not by express provision, but by a natural fit- 
ness or necessity. Whether these powers are exclusive 
in the federal government or not, has been regarded as a 
matter or question, dependent upon the construction of 
each particular power considered by itself. This con- 
struction has not been uniform or consistent, but has 
changed from time to time. The result is, that some of 
these powers are now, so far as judicial authority is con- 
sidered, to be regarded as exclusive in the federal govern- 
ment ; others are to be regarded quasi concurrent in the 
states. 

It is admitted that the power of congress, within the 
limit or jurisdiction conferred upon it, is supreme ; that 
no state power can control or impede its exercise. Not- 
withstanding this admission, it has been said, and it has 
been adjudicated, that some of these powers may be ex- 
ercised by the several states upon matters or particulars, 
in relation to which congress shall not have exercised its 
authority. In other words, that the legislative power of 
a state, in some particulars, is to be sought for, and is to 
be ascertained, by inquiring whether congress has or has 
not exercised its power over the same subject-matter. 
This is an extraordinary result, which may with propri- 
ety be regarded unnecessary, illogical, and well calculated 
to produce confusion and collision. The powers confer- 
red upon the legislative department of the federal gov- 
ernment, are essential to the system, and to the trusts 
created by it; otherwise such powers should not and 
would not have been conferred. In my view of the sys- 
tem, the powers of congress, to which reference has been 



THE SCIENCE OF GOVERNMENT. 107 

made, are supreme, and exclusive of state legislation. 
The several states may exercise similar powers for its own 
purposes, in all instances except those in relation to 
which the exercise of state authority is, by the express 
terms of the constitution of the United States, prohibited, 
or those, an exercise of which would be incompatible 
with the union, or with some trust or power confided 
to it. 

Congress has power to lay and collect taxes. The 
several states have power to lay and collect taxes. These 
powers are not the same ; they are similar powers, exer- 
cised by different governments, for different purposes ; and 
as they may be imposed at the same time upon the same 
property or persons, one of the governments, by reason 
of the inability of the person, or insufficiency of the pro- 
perty taxed, may occasionally be unable to levy or ob- 
tain the amount of its assessment. 

The power of taxation, which the two governments 
severally exercise, cannot be designated, in any appropri- 
ate use of the term, as concurrent. They are exclusive 
each of the other, to the extent to which the state has 
the power of taxation. The power of a state govern- 
ment to assess a tax upon subjects within its power of 
taxation, is not enlarged or diminished by the exercise of, 
or by the neglect to exercise, a similar power of taxation 
by the federal government. The correctness of this posi- 
tion in relation to taxes within the power of a state, has 
never been questioned ; I refer to it as an illustration of 
the principle which should be applied to all other powers 
conferred upon the federal government. Congress has 
power to regulate commerce with foreign nations, and 
among the several states, and with the Indian tribes. 
The late Mr. Justice Story, in his commentaries upon the 
constitution, in discussing the question, whether the 
power to regulate commerce is exclusive of the same 



108 THE SCIENCE OF GOVERNMENT. 

power in the states, says, " It has been settled, upon the 
most solemn deliberation, that the power is exclusive in 
the government of the United States." * 

The power to regulate commerce is general and un- 
limited in its terms. The full power to regulate a parti- 
cular subject implies the whole power, and leaves no re- 
siduum. A grant of the whole is incompatible with the 
existence of a right in another to any part of it. A grant 
of power to regulate, necessarily excludes the action of all 
others who would perform the same operation on the 
same thing. Regulation is designed to indicate the entire 
result. It produces an uniform whole, which is as much 
disturbed and deranged by changing what the regulating 
power designs to have unbounded, as that on which it 
has operated. 

The power to regulate commerce may be divided, may 
be distributed between, and may be exercised by, two 
sovereignties for different purposes. 

The power of congress in laying taxes is not inconsis- 
tent with that of the states. Each may lay a tax on the 
same thing, on the same property, without interfering 
with the action of the other ; for taxation is but taking 
small portions from the mass of property, which is sus- 
ceptible of almost infinite division. In imposing taxes for 
state purposes, a state is not doing what congress is em- 
powered to do. Congress is not empowered to tax for 
those purposes which are within the exclusive province 
of the several states. Whenever each or either govern- 
ment exercises the power of taxation, neither is exercis- 
ing the power of the other. But when a state proceeds 
to regulate commerce with foreign nations, or among the 
several states, it is exercising the very power which is 



* Story on Con. U. S.,Book 3,ch. 15, sections 516, 517, Abridgment. 



THE SCIENCE OF GOVERNMENT. 109 

granted to congress, and is doing the very thing which 
congress is authorized to do. When these suggestions 
were made by the author cited, they were true, and in 
accordance with the adjudications of the highest judi- 
cial tribunal known to the laws of the United States. A 
tribunal, the decisions of which have generally been dis- 
tinguished for correctness and ability; the decisions of 
which must be respected, and must be regarded as con- 
clusive upon all matters arising under the constitution or 
laws of the United States, howsoever they may differ from 
the judgment of any individual, or from the belief or 
opinion of the community. A reference to the decisions 
of this court, made since the commentary upon the con- 
stitution was written, will exhibit a different result. It 
must now be conceded, that these decisions sustain the 
right of the several states to regulate some matters of 
commerce not internal, provided congress shall not have 
exercised its authority in a manner to conflict with state 
legislation ; a position, a theory, which I cannot doubt 
will ultimately be renounced. These recent adjudica- 
tions seem to have been produced by a desire to uphold 
the power and authority of the state governments, so 
far as such power could, by any plausible course of rea- 
soning be upheld, by an opinion well founded, perhaps, 
that some of the matters over which congress has power, 
may be regulated more conveniently by state legislation 
than by the legislation of the federal government. 

These must be considered as unsafe and dangerous ele- 
ments of reasoning. These adjudications have also, to 
some extent, been induced by giving too much force and 
effect to expressions used in a manner which may be re- 
garded inaccurate and inappropriate. It has been often 
said, that the mere grant of power to congress does not 
imply a prohibition on the states to exercise the same 



110 THE SCIENCE OF GOVERNMENT. 

power.* Here is a clear misuse of terms. It might have 
been said, that the mere grant of a power to congress does 
not imply a prohibition on the state to exercise a similar 
power. A power in the federal government to impose a 
tax for the purposes of the federal government, does not 
and cannot imply a prohibition on a state, so as to pre- 
vent the imposition of a state tax for state purposes. 
The authority of congress to lay and collect taxes for cer- 
tain purposes, does not interfere with the power of the 
several states to tax for the support of their own govern- 
ments ; nor is the exercise of such power by the states an 
exercise of any portion of the power which is granted to 
the United States.f 

In a case recently before the supreme court of the 
United States, in which the question under consideration 
was discussed, an able and accomplished member of the 
court (Mr. Justice Taney) regarded the power to regu- 
late commerce between the several states as having the 
same force and effect as when applied to the regulation 
of commerce with foreign nations. In this respect, no 
difference of opinion has ever arisen ; the powers are 
conferred in the same clause and by the same words; 
they are of the same character, inasmuch as commerce 
between the several states cannot be regarded as local 
or subject to state legislation, with any more appropriate- 
ness than can be the commerce with foreign nations. 
After conceding this, the learned judge proceeds to say, 
" the present is a case of commerce between two states, 
in relation to which congress has not exercised its power." 
The question, therefore, is, whether a state is prohibited 
by the constitution of the United States from making 



* Sturges v. Crowninshield, 4 Wheat. Rep. 122. 
f Gibbons v. Ogclen, 9 Wheat. Eep. 1. 



THE SCIENCE OF GOVERNMENT. Ill 

any regulations of foreign commerce, or of commerce 
with another state, although such regulation is confined 
to its own territory, and made for its own convenience or 
interest, and does not come in conflict with any law of 
congress. In other words, whether the grant of power is 
of itself a prohibition to the states, and renders all state 
laws upon the subject null and void. Although a differ- 
ence of opinion exists between the members of the court, 
it seems to me to be very clear, that the mere grant of 
power to the general government cannot, upon any just 
principles of construction, be construed to be an absolute 
prohibition to the exercise of any power over the same 
subject by the states. 

The controlling and supreme power over commerce 
with foreign nations and the several states is, undoubtedly, 
conferred upon congress. Yet the state may neverthe- 
less, for the safety or convenience of trade, or for the 
protection of the health of its citizens, make regulations 
of commerce for its own ports and harbors, and for its 
own territory ; and such regulations are valid, unless they 
come in conflict with a law of congress* This supposed 
theory of our system is sustained and enforced by con- 
siderations derived from convenience, and from supposed 
usage in analogous cases. It is also supported by refer- 
ence to the power conferred upon congress over the 
militia. In an earlier case the court had holclen, that the 
grant of power to the federal government to provide for 
organizing, arming, and disciplining the militia ; did not 
preclude the several states from legislating on the same 
subject, provided the law of the state was not repugnant 
to the law of congress.f 

These cases are not analogous, and the power of con- 



* The License Cases, 5 How. Rep. 578, 579. 
f Houston v. Moore, 5 Wheat. Rep. 1, 



112 THE SCIENCE OF GOVERNMENT. 



gress over the militia and over commerce, cannot well be 
ascertained by any supposed relation between them. The 
militia is peculiarly a state institution, to be regulated in 
its general features by the several states. It cannot be 
considered as one of the implements by which the duties 
of the federal government are to be executed. The 
power of congress over the militia is in terms special and 
qualified. 

Congress has power to call forth the militia to execute 
the laws of the union, to suppress insurrections, and 
repel invasions; to provide for their organization and 
government, when employed in the service of the United 
States, reserving to the states the appointment of its 
officers. The militia are to be relied upon only upon 
sudden emergencies ; the safety of the union is to be 
secured by the army and navy, by forces created and 
controlled exclusively by congress, so far as such security 
depends upon force. Subsequent to the case to which 
reference has been made, the same subject was considered 
in a class of cases, called the passenger cases, in which 
the members of the court did not agree or unite in 
opinion or in judgment. So far as an examination of 
these cases afford the means of attaining a result, it would 
seem that a majority of the court considered the power 
of congress over commerce exclusive of any state legis- 
lation upon the same subject,* thus returning apparently 
to the doctrine which Mr. Justice Story had regarded as 
well settled. 

The matter has recently been before the court, and a 
majority have distinctly said, that the power of congress 
over commerce is not, in all particulars and in relation 
to all the regulations of commerce, to be regarded as 
exclusive of state power. 

How. Kep. 283. 



THE SCIENCE OF GOVERNMENT. 113 

In 1789, congress by statute provided, "that all pilots 
in the bays, inlets, rivers, harbors, and ports of the United 
States shall continue to be regulated in conformity with 
the existing laws of the states respectively, wherein such 
pilots may be, or with such laws as the states may re- 
spectively hereafter enact for the purpose, until further 
legislative provision shall be made by congress." * Subse- 
quent to this act of congress, Pennsylvania by its statute 
of 29th March, 1803, enacted that every ship or vessel 
arriving from or bound to any foreign port or place, and 
every ship or vessel of the burden of seventy-five tons or 
more, sailing from or bound to any port not within the 
river Delaware, shall be obliged to receive a pilot. And 
if the master of any such ship or vessel shall refuse or 
neglect to take a pilot, the master, owner, or consignee 
shall pay a sum equal to half pilotage. The validity of 
this statute of Pennsylvania was the matter to be adjudi- 
cated. The court entertained an opinion that the regu- 
lation of pilots, was to be regarded as a regulation of 
navigation, and therefore a regulation of commerce 
over which congress had the supreme authority ; that 
the act of congress adopting the state laws existing 
at the time of its passage, made such laws by adop- 
tion laws of the United States, but did not operate 
to give effect to the laws of the states subsequently 
passed. The court, therefore, were brought directly and 
unavoidably to the consideration of the question, whether 
the mere grant of the commercial power to congress, 
was in itself a prohibition to the states of all power to 
regulate commerce, embracing within the term all mat- 
ters to which the power of congress over commerce 
extended. The court held that a state by virtue of its 
own sovereign power might legally regulate pilots, so 

* Stat, at Large, U. S., vol. i. pp. 53, 54, cli. ix. sec. 4. 

15 



114 THE SCIENCE OF GOVERNMENT. 

long as congress neglected to exercise its power over the 
subject. This opinion proceeded mainly upon an assump- 
tion, that pilots and pilotage could be regulated by the 
several states more conveniently than by congress. The 
court at the same time expressly limiting the principles 
of its judgment to the case of pilots, intimating that the 
principle of that case would not be applied to other cases, 
to which its reasoning might be applicable.* A minority 
of the court dissented, and one member gave the reasons 
of his dissent, which when read must be commended by 
him who reads. He says, " That a state may regulate 
foreign commerce, or commerce among the states, is a 
doctrine which has been advanced by individual judges 
of this court, but never before sanctioned by the decision 
of this court. In this case the power to regulate pilots, 
is admitted to belong to the commercial power of con- 
gress ; and yet it is held, that a state, by virtue of its 
inherent power, may regulate the subject until such 
regulation shall be annulled by congress. This is the 
principle established by this decision. Its language is 
guarded, in order to apply the decision only to the case 
before the court. But such restrictions can never ope- 
rate so as to render the principle inapplicable to other 
cases. The power is recognized in the state, because the 
object is more appropriate for state than federal action ; 
and consequently it must be presumed, the constitution 
cannot have intended to inhibit state action. This is not 
a rule by which the constitution is to be construe d."f 

It will be found that the principle in this case, if car- 
ried out, will deeply affect the commercial prosperity of 
the country. 

If a state has power to regulate foreign commerce, 
such regulation must be held valid, until congress shall 



* Cooley v. The Wardens of Philadelphia, 12 How. 299. 
f Ibid. p. 324. Mr. Justice McLean, dissenting opinion. 



THE SCIENCE OF GOVERNMENT. 115 

repeal or annul it. These views of the dissenting judge 
are in harmony with the system, which consists in the 
creation and symmetry of two distinct governments, each 
having its peculiar jurisdiction defined, and not dependent 
upon convenience, or the supposed indifference to and 
neglect by the one of its duty. If the sovereign legis- 
lative capacity of a state may depend in any one case 
upon convenience, it may be ascertained with equal pro- 
priety in all other cases, upon the same or a similar con- 
venience. If the legislative power of a state is depen- 
dent upon the action or non-action of another govern- 
ment, it has no solid or secure foundation upon which to 
stand, and its constitution the source, and the only legiti- 
mate source of its power, may well be torn into pieces, 
and its fragments scattered to the wind. Upon this ques- 
tion may be examined and considered an able and inter- 
esting opinion of the late William Wirt, given when he 
was attorney-general of the United States. South Caro- 
lina passed a statute, by which it was enacted a that if any 
vessel shall come into any port or harbor of this state 
from any other state or foreign port, having on board free 
persons of color, such persons shall be liable to be seized 
and confined until the vessel sails, and the expenses of 
detention shall be paid by the master, and upon his re- 
fusal to pay, the persons so seized may be sold as absolute 
slaves." ::: Under this law a person of color was seized 
from a British vessel, and upon application to the federal 
government the attorney-general advised, that the stat- 
ute was unconstitutional and void. In this opinion the 
powers of the federal government and of the several 
states are stated with clearness and accuracy. It says, 
a By the national constitution, the power of regulating 



* Elliot, Diplomatic Code, vol. ii. pp. 676, 677; Opinions of the Attorneys- 
General, vol. i. p. G59 ; Ibid. vol. ii. p. 42G. 



116 THE SCIENCE OF GOVERNMENT. 

commerce with foreign nations and among the several 
states, is given to congress 5 and this power is from its 
nature exclusive. This power of regulating commerce is 
the power of prescribing the terms, on which the inter- 
course between foreign nations and the United States, 
and between the several states of the union, shall be car- 
ried on. No state can interdict a vessel which is about 
to enter her ports, in conformity with the laws of the 
United States, nor impose any restraint or embarrassment 
on such vessel, in consequence of her having entered in 
conformity with these laws." This opinion was not given 
in consequence of any supposed illegality or inhumanity 
exhibited in the purpose of the state statute, but because 
the state had no authority to say whether a vessel should 
be navigated in part or in whole by a particular class of 
persons. A subsequent attorney-general of eminent 
ability gave a different opinion, upon the ground, that 
the statute might be regarded and sustained as a mere 
police regulation. Upon principle, a state has the same 
power and authority to say, a vessel shall not be navi- 
gated by free persons of color, as it has to say, a vessel 
shall be navigated by a pilot appointed by the state. It 
can impose penalties in the one case, so well as it can in 
the other. In my judgment, a state cannot constitution- 
ally do either. I have dwelt upon this subject somewhat 
at length, because I consider the question as of vital im- 
portance to the safety and harmonious action of our sys- 
tem. The internal commerce of a state, that which is 
carried on exclusively within its own territory and be- 
tween its own citizens, or between persons temporarily 
domiciled or resident within its exclusive jurisdiction, 
may and must be regulated by state authority. Foreign 
commerce and commerce between the several states, in 
its nature is peculiarly the subject of the care and super- 
vision of the federal government, and should be left with 



THE SCIENCE OF GOVERNMENT. 117 

all its parts, where it has been placed by the constitution. 
By this division of power between the two governments, 
each is supreme and exclusive of the other, in and within 
its prescribed limits, and no confusion or war of the poli- 
tical elements can exist. 

Another power conferred upon congress is, to establish 
an uniform rule upon the subject of naturalization. This 
is an important power, and it must be considered as a 
power which could not well be vested in and with the 
several states. Aliens have no right to become citizens 
of a country to which they owe no allegiance, except as 
a matter of comity. Some writers hold, that a citizen 
cannot at his pleasure renounce his native allegiance. If 
this be so. the power of a government to extend such 
comity should be well guarded, and capable of efficient 
control. 

An individual who enters a country other than his 
own, does so as matter of comity, expressed in legal en- 
actments, or by the sovereign will, or by implication de- 
rived from the fact, that no restraining provision or policy 
has been adopted. 

An alien, in our law, is a person born out of the juris- 
diction of the United States * A person born without 
the territory of the United States, may have been born 
within its jurisdiction, and consequently be regarded as a 
citizen. An alien cannot acquire a title to real property 
by descent, or which is created by other mere operation 
of law. This is a well settled rule of the common law, 
and prevails, unless some statute or other competent au- 
thority shall have made a different provision. An alien 
may purchase land, or may take it by devise, subject to 
the right of the state to seize it, and divest his title, which, 
however acquired, must be regarded at common law as 

* 2 Kent, Com. 5th edit., p. 50, et seq. 



118 THE SCIENCE OF GOVERNMENT. 

imperfect and defeasible. If an alien purchase land, at 
his decease it does not descend to his heirs, but vests im- 
mediately in the state. An alien, under the English law, 
may take a lease for years of a house for the purpose of 
trade. Probably in this country, a lease of a house to an 
alien for any purpose, would be regarded as valid between 
the parties to it, inasmuch as our system is not so severe 
as the common law of England has been upon this sub- 
ject. 

We are very much inclined, when inquiring what the 
law is, to ascertain what it should be, to learn whether 
this or that proposition has a logical foundation ; whether 
it be conformable to certain supposed principles of right 
and wrong, — a mode of deduction of much value, but 
not always safe. An alien cannot exercise the right of 
suffrage, a privilege which constitutes the main pillar of 
our institutions, which is enjoyed by the American 
citizen to a greater extent than it is by the citizen of 
any other country. An alien, if permitted by comity 
to enter a country, is entitled to its protection in his per- 
son, his character, and in such property as the law of the 
country may permit him to hold. 

The disabilities imposed upon aliens are designed to 
secure the integrity and welfare of the country by which 
they are imposed, to prevent the introduction of danger- 
ous persons ; of persons who, having acquired political 
or religious associations supposed to be objectionable, 
might not readily abandon them for those of their 
adopted country. 

The title to land, when it became the subject of indi- 
vidual ownership, was regarded as conferring peculiar 
rights, and as giving to its possessor a control over the 
government, a political importance and influence not de- 
rived or acquired by the possession or ownership of mov- 
able property. 



THE SCIENCE OF GOVERNMENT. 119 

The disabilities of aliens were, therefore, established 
from considerations of state policy or necessity, as a 
means of self-preservation and protection, which every 
government has a right to claim for itself and for its 
citizens. As the great body of any community are more 
or less intelligent and educated, so these restrictions are 
more or less important and essential to the well-being of 
such community. It must be perceived, from this slight 
reference to the principles which all countries have ap- 
plied to aliens, that the subject is one peculiarly appro- 
priate to the federal government, so as to give uniformity 
and stability to such system as may be adopted. Nations 
have frequently entered into stipulations with each other, 
by which the respective citizens of each have been 
allowed to enjoy certain immunities in the country of 
the other, which they might not have had without such 
agreement. This exhibits the progress of society, and 
the constant enlargement, between civilized nations, of 
private right. 

In a treaty made by the United States with Great 
Britain in 1783, it was agreed, "that creditors on either 
side shall meet with no lawful impediment to the re- 
covery of the full value in sterling money of all bond fide 
debts heretofore contracted." It was provided, in the same 
treaty, that congress should recommend to the several 
states restitution of confiscated estates ; that all persons 
should be allowed to go to any part or parts of any of the 
thirteen states, and therein to remain for twelve months 
unmolested in their endeavors to obtain restitution of 
their estates which had been confiscated* By a treaty 
with the same country, in 1794, the United States agreed 
to make compensation to British creditors for losses occa- 

* Statutes at Large, U. States, vol. viii. p. 82. 



120 THE SCIENCE OF GOVERNMENT. 

sioned by legal impediments to the collection of debts 
contracted before the peace of 1783 * 

It was also provided that British subjects who had 
lands in the territories of the United States, and Ameri- 
can citizens who held lands in the dominions of his ma- 
jesty, should continue to hold them according to the 
nature and tenure of their respective estates and titles 
therein, and might grant, sell, or devise the same to 
whom they pleased, in like manner as if they were na- 
tives ; and that neither they, nor their heirs or assigns, 
should, so far as may resjoect the said lands and the legal 
remedies thereto, be regarded as aliens.f 

In a treaty with Spain in 1795, it was provided that 
the courts of each country should be open to the citizens 
of the other.?!: The policy of the United States, exhibited 
in its legislation in relation to aliens, has been liberal and 
enlarged. We are admonished to love our neighbor as 
as ourself ; in the language of the law we are admo- 
nished to use our own privileges, so as not to destroy or 
impair the rights or reasonable expectations of others. 
In our negotiations with aliens, this admonition has been 
heeded to its full extent. 

They are allowed, under the constitution and laws of 
the United States, to litigate with citizens in the courts of 
the United States. Aliens litigating with aliens have no 
standing in the courts of the United States, but must re- 
sort in such case to a state court. This exclusion of 
aliens, when litigating with each other from the courts of 
the United States, does not probably apply to some cases 
which may arise in a court of admiralty and maritime 
jurisdiction. 



* Statutes at Large, U. States, vol. viii. p. 11! 
f Ibid. p. 112. t Ibid. p. 150. 



THE SCIENCE OF GOVERNMENT. 121 

This discrimination, which is made between litigation 
carried on between aliens and that which is carried on 
by an alien against a citizen, exhibits the object of our 
union, of the federal system, which is, as I have attempted 
thus far to show, protection from foreign aggression to 
ourselves, accompanied by a determination to give no 
just cause of offence to foreign nations, or to their citi- 
zens. Aliens are admitted to all the privileges of citizens, 
after a short residence, upon taking an oath of fealty. 
Difference of opinion as to the length of residence which 
should be required to entitle an alien to become a citizen, 
has always existed between persons who have considered 
it as a mere matter of state policy, uninfluenced by party 
considerations. Politicians have, no doubt, differed upon 
party considerations, and with reference to supposed 
temporary personal popularity ; with these last grounds 
of difference I have no concern. The principle which 
requires a residence, is deduced from the supposed ina- 
bility of a stranger to understand, at a single glance of 
the eye, the peculiarity and nature of our institutions. 
A man may change, and put himself above and beyond 
all the influences and associations of his early life ; may 
throw off the habit of thought and action created by ex- 
ternal influences. This change, however, is not the work 
of an hour or of a day; it must be the result of time. 
This time cannot be ascertained with precision ; it is not 
susceptible of mathematical demonstration, but can only 
be approximated. A person coming from a country gov- 
erned by a liberal constitutional government or system, 
can be assimilated to and with free institutions much 
easier and in less time than can be a person coming from 
an absolute government, as the former would not be sub- 
ject to the same extent of change. 

A discrimination, however, based upon the character 
or supposed character of the native country of an alien, 

10 



122 THE SCIENCE OF GOVERNMENT. 

would be offensive and objectionable. An examination 
of the parties applying, with a view to ascertain in each 
individual case his fitness, as exhibited in his education 
or natural powers of mind, would be objectionable and 
impracticable. The period, therefore, which may be 
established as quarantine or probation must be arbitrary, 
and should be sufficient to enable the applicant for the 
privileges of a citizen to throw off his old garment and 
to put on the new. Another fact must always have 
influence in this matter. If- the applications are few, the 
time of residence or probation which may be required, is 
comparatively unimportant, inasmuch as a single individ- 
ual, in position like to a particle of the ocean, can do 
little to derange the surrounding mass. On the other 
hand, multitudes must be seen, and their influence felt for 
good or for evil. It is clear, therefore, that the time of 
residence should to some extent be measured by the 
number of those who may desire to renounce the pro- 
tection of their father-land, by the adoption of a new 
home and its immunities. I proceed to inquire whether 
the power to admit aliens to the privileges which belong 
only to a citizen, is exclusive in the federal government. 
The provision of the constitution is, that the rule upon 
the subject shall be uniform throughout the United 
States. The several states have no means of exercising 
a joint power, have no authority which can operate 
beyond their respective territories, and consequently can- 
not establish the uniformity of action which the subject 
requires. The power is appropriate and essential to the 
federal government, by which all the foreign intercourse 
and relations of the country are controlled. The United 
States have contracted with the several states to protect 
them in the enjoyment of a republican form of govern- 
ment, to protect them against invasion. 

Mr. Justice Story, in his commentaries upon the con- 



THE SCIENCE OF GOVERNMENT. 123 

stitution, says, it follows from the very nature of the 
power, that to be useful, it must be exclusive ; for a con- 
current power in the states would bring back all the evils 
and embarrassments (existing under the confederation) 
which the uniform rule of the constitution was designed 
to remedy. And accordingly, though there was a mo- 
mentary hesitation, when the constitution first went into 
operation, whether the power might not still be exercised 
by the states subject only to the control of congress, so 
far as the legislation of the latter extended, as the 
supreme law ; yet the power is now firmly established to 
be exclusive in congress."' If this power be regarded as 
exclusive in congress, and it always, so far as I know, has 
been so regarded, no state can rightfully exercise any 
part of the power. If a state cannot remove all the dis- 
abilities of an alien, I see no ground upon which it can 
with propriety be said, that a state can remove any of 
the disabilities. It is the province of the federal govern- 
ment to provide for the naturalization of aliens, and as a 
consequence, to say upon whom and upon what condi- 
tions aliens shall be allowed to become citizens. This 
privilege may be conferred upon a few individuals, or it 
may be denied altogether. This power of reception and 
rejection cannot be concurrently exercised by two inde- 
pendent governments, exercising jurisdiction over the 
same territory. I have endeavored to state the character 
and condition of this power distinctly and intelligently, 
for the purpose of bringing to your notice a matter 
which has not been discussed with reference to the pecu- 
liarities of our system of government. An alien, at com- 
mon law, cannot acquire a perfect and indefeasible title 
to land. An incapacity to hold a fee-simple is one' of 
the disabilities of alienage. It is true, that at common 

* Story on Con. TJ. States, book 3, ch. 1G, sec. 538. 



124 THE SCIENCE OF GOVERNMENT. 

law an alien may hold land until the sovereign power 
within whose jurisdiction it is situate shall, by virtue of 
its sovereignty, seize upon it, and thereby divest the sup- 
posed title. In the language of the law, an alien may 
hold until office found ; that is, until the sovereign power, 
by the institution of a suit, shall ascertain and declare 
the alienage. This has uniformly been regarded as the 
law of this country, sustained by repeated decisions. 

Whenever suit has been or shall be instituted, to divest 
the title of an alien, it has been and must be by the 
state in which the land is situate, and not by the federal 
government. The land, in such case, becomes the pro- 
perty of the state, and not of the United States. It 
follows, therefore, assuming that an alien may enjoy this 
qualified right under our system, that the federal govern- 
ment cannot divest his title, or impose upon a state the 
obligation to do it, and therefore may be subject to in- 
conveniences which it cannot overcome or counteract. 

The principle which I wish to present for consideration, 
may be illustrated by a reference to the legislation of the 
several states. Many states have provided that aliens 
may hold land under certain limitations. Massachusetts 
and New Hampshire have provided by statute that aliens . 
may hold land as effectually, to every intent, as a citizen 
may hold it, thus removing, so far as state legislation can 
remove, one of the disabilities of alienage. This legisla- 
tion has been commended by Mr. Chancellor Kent as 
enlarged and liberal. It no doubt may be so regarded. 
It has been upheld by judicial decision. I am unable to 
perceive any principle upon which it can be sustained, 
without doing violence to our system. A grant of land 
by the sovereign authority does not confer upon the 
grantor the rights of a citizen, it does not ordinarily con- 
fer upon him the elective franchise ; but such grant by the 
sovereign cannot be resumed by the power which con- 



THE SCIENCE OF GOVERNMENT. 125 

ferred it, unless a reservation to that intent be contained 
in the grant. A state having granted land to an alien, 
thereby by implication admits his capacity to hold, and 
is estopped to reclaim it by reason of the alienage of the 
grantee. In the constitution of one of the several states, 
it is provided, that " freeholders, and all other inhabitants 
having acquired a prescribed residence, shall be allowed 
to vote* If this state may rightfully confer upon an 
alien the capacity of a freeholder, an alien under the 
state constitution, without naturalization, (unless excluded 
by especial and doubtful constitutional legislation,) may 
become an elector in the federal government, may exer- 
cise the elective franchise, which would be a clear viola- 
tion of our system, and a direct evasion of the exclusive 
power of congress to regulate and impose the terms and 
conditions upon which the benefits and privileges of a 
citizen may be conferred. If a state may allow an alien 
to hold land, to be exempt from any one of his disabili- 
ties, I see no ground upon which to say a state may not 
remove all his disabilities, and in fact may say, without 
reference to the federal government, who shall and who 
shall not enter its territory. 

It is laid down by writers upon the law of nations,*)- 
" that the sovereign may forbid the entrance of his terri- 
tory, either to foreigners in general or in particular 
classes, or to certain persons, or for certain particular pur- 
poses, according as he may think it advantageous to the 
state." " Since the lord of the territory may, whenever 
he thinks proper, forbid its being entered, he has no 
doubt a power to annex what conditions he pleases to 
the permission to enter." At the adoption of the consti- 
tution, the several states were sovereign, and each was 



* Constitution of New Hampshire. 

f Vattel, Law of Nations, book 2, eh. 7, sec. 94 ; and ch. 8, sec. 100. 



1.26 THE SCIENCE OF GOVERNMENT. 

lord of its territory, and might rightfully say who should 
enter, who should not, who might own land, who should 
be a citizen. Since the adoption of the federal constitu- 
tion, the states have no foreign policy, no right to enter 
into compacts with foreign states, or to confer upon 
foreigners any political privileges or political exemptions. 
Upon this question, the present chief justice of the United 
States, (Mr. Taney,) in an opinion wherein he dissented 
from the judgment of the court, entertained different 
views, which he expressed with great force, in his accus- 
tomed clear and distinct language. He says, " it is clear 
upon principle and upon authority, that the several 
states have a right to remove from among their people, 
and to prevent from entering the state, any person, or 
class or description of persons, whom it may deem dan- 
gerous or injurious to the interests and welfare of its citi- 
zens ; and that the state has the exclusive right to deter- 
mine, in its sound discretion, whether the danger does or 
does not exist, free from the control of the federal gov- 
ernment." * In the same opinion it is conceded, " that the 
power to exclude persons cannot be concurrent ; that the 
sovereignty, whether it belongs to the general or to the 
state government, which possesses the right, must in its 
exercise be altogether independent of the other." The 
views entertained by the chief justice, were not, apparent- 
ly, adopted by the court, which conceded, that a state 



* The Passenger Cases, 7 How. Rep. 4G6, 467. The language of the chief 
justice is broad and comprehensive. In considering its import, it should be 
borne in mind, that the foreign political relations of the country are confided 
exclusively to the federal jurisdiction, to the exercise of which successfully, an 
exclusion of aliens may be essential. It should also be remembered, that the 
safety of a state is not the only matter to be upheld and preserved. The 
safety of the United States embraces that of the several states, and is, therefore, 
more important and comprehensive. If the residence of an alien, or a class of 
aliens in general, is dangerous to the peace of the United States, the federal 
sovereignty may and must exclude him or them. 



THE SCIENCE OF GOVERNMENT. 127 

has a right to repel from her shores lunatics, idiots, crimi- 
nals, or paupers, which any foreign country, or even one 
of her sister states, might endeavor to thrust upon her. 
This limited right has its foundation in the sacred law of 
self-defence, which no power granted to congress can re- 
strain or annul * If a state may exercise an unlimited 
power of admitting or excluding any person, at its discre- 
tion, foreign consuls may be compelled to hold their 
places at the will of a state, and not by permission of 
the federal government, a position for which no one will 
contend. 

In our treaties, as has already been stated, provision 
has been made, that certain aliens should not be despoiled 
of their land to which they should make claim, but 
should be allowed to retain the same, to the same extent 
as they might if they had been citizens. This provision, 
contained in our treaties, has been sustained as an un- 
doubted exercise of rightful authority on the part of the 
federal government,-]- by many decisions of the supreme 
court of the United States. If the federal government 
may in one instance say, that an alien shall hold, or may 
hold land, it may say so in all cases, and no state can say 
the contrary. 

If there is any one power, which from its character 
and purpose should be regarded as supreme and exclu- 
sive, in the federal sovereignty, it is the power or the 
powers which relate, or may relate, to the foreign rela- 
tions of the country ; with these the several states have 
no occasion for the power. So far as I have been able to 
analyze our system, keeping in mind its great and para- 
mount objects, I can find no warrant for saying, that a 



* The Passenger Cases, 7 How. Rep. 457, Mr. Justice Wayne. 
f On- >: Hodgson, A Wheat Rep. 453; Blight v. Rochester, 7 Wheat. Rep. 
585. 



128 THE SCIENCE OF GOVERNMENT. 

state may authorize an alien to hold land, or in any other 
way may remove any one of his disabilities. I am un- 
able to see how the power of naturalization, which has 
been conferred upon the federal government, can be en- 
larged or diminished by any state constitution or state 
law; such power must be regarded as supreme, as exclu- 
sive in the federal government, throughout all its immu- 
nities and its incidents. 

The power to pass uniform laws upon the subject of 
bankruptcies, has been conferred upon congress. At the 
time of the adoption of the federal constitution, the 
several states were indebted to a large extent ; the citi- 
zens were in a similar condition of indebtment. Com- 
merce was depressed, the internal trade and resources of 
the country were limited. This depression and embar- 
rassment was more extensive in some than in- other of 
the states. Jealous}' and suspicion, no doubt, existed be- 
tween them. Notwithstanding these difficulties, it was 
essential to the integrity of the proposed union, that 
public and private faith should be preserved, that public 
and private obligation should be performed. It was well 
known to those who framed the constitution, that new 
states were often inclined to shield their citizens, by the 
adoption of a system or series of stay or stop laws, by 
legislating for the benefit of debtors, to the injury and 
exclusion of the lawful rights of creditors. To obviate 
this possible state of things was one of the motives 
which induced the power to regulate bankruptcies. 
Another motive was, to provide for the unfortunate debt- 
or, who, by accident or misadventure beyond his control, 
might be unable to perform his undertakings. Bank- 
rupt laws were originally designed for the benefit of mer- 
chants, and not for persons engaged in other pursuits. 
The reason of the distinction is apparent and well founded, 
whether it be considered as a political or moral element. 



THE SCIENCE OF GOVEKNMENT. 129 

The operations of merchants are extensive, require the 
employment of large sums of money and of credit, which 
must be exposed to perils and hazards, which no human 
foresight or integrity can guard against or prevent. In 
such cases, it is important to the citizen and his family, 
and to the community, that his shackles should be broken, 
so that he may resume his avocation, free from the de- 
pression which continued embarrassments might produce 
upon his physical and mental powers. 

Those engaged in other pursuits are not exposed to 
similar hazards ; by prudence and economy, which are 
essential to their welfare and to the character of the 
community, they may, generally, protect and provide for 
themselves. To induce them to do this, as a general 
principle, they should be held to a performance of their 
obligations, otherwise they may become indifferent and 
heedless of their own interests, and of the interests of 
those confided to their protection. Is this power exclu- 
sive in the federal government? The uniformity re- 
quired, cannot be obtained by state legislation. If the 
question is to be determined by a mere reference to the 
language by which the power is conferred, no distinction 
can be made between this power and that of naturaliza- 
tion. The two powers are given in the same clause and 
in the same terms. Is the object the same ? It may be 
said that the one, the power of naturalization, is foreign, 
and external in its character ; that the other is internal, 
and therefore a difference of result may well exist. The 
power over bankruptcy, although it operates upon the 
people within the country, upon citizens, is undoubtedly 
in its principal element and purpose foreign and exter- 
nal. It was designed to prevent the several states from 
a course of legislation which might release its citizens 
from a performance of their obligations made with the 
citizens of foreign nations, from a performance of their 

17 



130 THE SCIENCE OF GOVERNMENT. 

obligations made with the citizens of the other states 
of the union. It was designed to prevent the several 
states from passing laws, conferring upon their citizens a 
preference or immunity not conceded to the citizens of 
other states, which might be entitled, and should be en- 
titled to protection. The power of bankruptcies became 
the subject of judicial discussion soon after the adoption 
of the constitution, and it was held, that the power of 
congress was supreme, but not exclusive. That the sev- 
eral states might pass bankrupt and insolvent laws, pro- 
vided congress had not exercised its power, and even 
when congress had exercised the power, the several states 
might proceed with their laws, so far as they could legis- 
late without producing any conflict with any provision or 
law of the United States. The state laws passed under 
this supposed power, however, by reason of a provision 
in the constitution which prohibits a state from passing 
any law which shall violate or impair the obligation of a 
contract, have been confined to their own citizens, to 
contracts made after the passage of the law, to contracts 
made between the citizens of the state by which the law 
may have been made, and therefore have had, and can 
have, only a limited operation. A state law cannot ope- 
rate to release a debtor from an obligation contracted or 
entered into with a foreign citizen or with a citizen of 
another state, so that no effectual law of bankruptcy 
can be made, except by federal legislation. In the case 
in which it was held, that congress has not the exclusive 
power over bankruptcies, the opinion was maintained and 
sustained with great ability, and upon grounds of great 
plausibility, aided, no doubt, by a consideration of conve- 
nience. The late and most eminent chief justice says, 
" If, in the opinion of congress, uniform laws concerning 
bankruptcies ought not to be established, it does not fol- 
low that partial laws may not exist, or that state legisla- 



THE SCIENCE OF GOVERNMENT. 131 

tion on the subject must cease. It is not the right to 
establish these uniform laws, but their actual establish- 
ment, which is inconsistent with the partial acts of the 
states." * In pronouncing this opinion, it cannot be 
doubted that the mind of the court was influenced to 
some extent by a supposed difference between insolvent 
and bankrupt statutes ; the former, according to the gen- 
erally received opinion, operating only to discharge the 
person from arrest, leaving his future property liable, 
whereas the latter, a bankrupt statute, discharges not 
only the person but the contract. 

Mr. Justice Story, in his commentaries, accedes to this 
opinion as the law of the land, because it had been so de- 
cided. In his discussion, however, of the subject, it is 
evident that, independent of adjudication, he entertained 
a different view. He says, there are peculiar reasons, 
independent of general considerations, why the govern- 
ment of the United States should be intrusted with this 
power. They result from the importance of preserving 
harmony, promoting justice, and securing equality of 
rights and remedies among the citizens of all the states. 
It is obvious, that if the power is exclusively vested in 
the states, each one will be at liberty to frame such a sys- 
tem of legislation upon the subject of bankruptcy and 
insolvency, as best suits its own local interests and pur- 
suits. Under such circumstances, no uniformity of sys- 
tem or action can be expected. No state can introduce 
a system which shall extend beyond its own limits, and 
the persons who are subject to its jurisdiction. He adds, 
the power is important in regard to foreign countries, and 
to our commercial intercourse with them. The existence 
of the power is useful as a check upon undue legislation, 



* Sturges^. Crowninshield, 4 Wheat. Rep. 414, 415. 



132 THE SCIENCE OF GOVERNMENT. 

and as a means of redressing any grievances sustained by 
foreigners in commercial transactions.* 

So far, the theory applied to many of the powers of the 
federal government, which authorizes the several states to 
act upon matters upon which congress may not have ex- 
ercised its admitted power, has produced no serious prac- 
tical evil or difficulty. I have no doubt it has been conve- 
nient. It cannot, however, fail to be seen, that it has ele- 
ments which may and must, if carried out to its legiti- 
mate extent, produce evil and ultimate death to our sys- 
tem and its institutions. If a state may act in any 
particular case because congress has not acted, it may, 
upon the same principle and with the same propriety, act 
in all similar cases. Unless the powers of the two gov- 
ernments are to be sought for and ascertained in their 
constitutions, and nowhere else, they must be uncertain 
and undefined ; they should have certainty and precision, 
and by holding the powers of each government, as hav- 
ing life and vitality independent of the action of the 
other, this certainty and precision may be obtained ; 
each government will exercise its own power. 

The several states may and will exercise powers simi- 
lar to, but not the same with, those of the federal govern- 
ment, for their own purposes, so far and so far only as 
similar powers can be exercised without encroaching upon 
those confided to the federal government. Much to be 
preferred it is, that some purpose which in itself may be 
important, or some matter of convenience should fail of 
accomplishment, than that the symmetry of our system 
should be marred by the introduction of any dangerous 
or unsound principle or system of construction. 

Another power of congress is that of providing for the 
punishment of counterfeiting the public securities. 

* Story on Con. U. States, book 3, ch. 16, sections 540, 545. 



THE SCIENCE OF GOVERNMENT. 133 

In former times, tampering with the coin of the king 
was regarded as treason, and punishable by death. The 
severity of the punishment cannot at the present time be 
doubted. The principle which dictated it, although car- 
ried to an extreme, cannot be denied. Government must 
be sustained and upheld, and it must, therefore, provide 
for its own security, for the integrity and safety of the im- 
plements by which its functions and purposes are to be 
performed. If the public securities can easily and without 
danger be counterfeited, their value and ability to accom- 
plish the purpose and duty of government will be de- 
feated. To avoid an evil of this description, every gov- 
ernment must be clothed with authority to protect itself, 
and the agent or agencies by which its trusts are to be 
performed. 

Counterfeiting a public security, or tampering with the 
coin or securities of a country, is more disastrous in its 
consequences than possibly can be the counterfeiting or 
tampering with a private contract or security. In the 
one case, the evil falls upon the public, upon the com- 
munity, as a society ; in the other, it produces wrong and 
injury only to private right, and is not so extensive in 
its influence. As to the extent and character of the 
power under consideration, no difference of opinion has 
ever arisen. It is, in its nature and purpose, exclusive in 
the federal government. It cannot be otherwise, inas- 
much as every government must be the exclusive judge 
of offences against itself. One government cannot well 
undertake to punish for wrongs done to another. The 
state authority can provide and does provide in this par- 
ticular for itself. It exercises, not the same, but a power 
similar to one exercised by the federal government. The 
powers of the two governments upon this subject are 
confined each within its own province, and no collision 
or difficulty can be suggested. 



134 THE SCIENCE OF GOVERNMENT. 

This power exhibits distinctly the true theory of our 
system. 

It shows the existence of similar powers, exercised for 
and with a similar intent, in two, not the same distinct 
governments, each acting for itself, uninfluenced and 
controlled by the action of the other, each responsible 
for its own fidelity, neither amenable to censure for the 
neglect or inability of the other to discharge its trusts. 



LECTURE V. 



THE LEGISLATIVE DEPARTMENT OF THE FEDERAL GOVERNMENT. — IT IS SUPREME, 
AND EXCLUSIVE OF STATE LEGISLATION. — THIS POSITION CONSIDERED AS AP- 
PLIED TO "POST-OFFICES AND POST-ROADS," — " THE PROGRESS OF SCIENCE AND 
USEFUL ARTS," — " OFFENCES AGAINST THE LAW OF NATIONS." — RESTRICTIONS 
UPON THE LEGISLATIVE DEPARTMENT. 



The power to establish post-offices and post-roads is 
conferred upon congress. It does not apparently furnish 
many suggestions of a political or scientific character. It 
seems to be a mere matter of business, which might con- 
veniently be managed by the several states, each acting 
within its own territory, or, under certain legal regula- 
tions to prevent monopoly and exorbitant postage, it 
might be left to individual enterprise. Those who framed 
the constitution entertained a more enlarged view of the 
subject, and regarded it as a matter of national concern 
and interest. 

The duties to be performed under this power, and the 
benefits resulting therefrom, are not in their nature local, 
or more applicable to any one state than to any other. 
When the constitution was presented to the people for 
their adoption and ratification, this power attracted very 
little notice or comment. It was not resisted or approved 
to any considerable extent. The writers of the Fede- 
ralist, whose influence in favor of the adoption of our sys- 
tem was undoubtedly of great importance, passed over 



136 THE SCIENCE OF GOVERNMENT. 

the subject by a mere reference, accompanied by a 
passing observation as to the propriety of delegating its 
control to the federal government. It has been sug- 
gested that the government is only authorized to select 
the roads over which the mails shall be transported, and 
to designate the places at which post-offices shall be 
located. This limited construction has never been 
adopted, has not been sanctioned by any considerable 
number of persons, or supported by any plausible 
course of reasoning. It must, therefore, be considered 
as practically settled, that the entire subject, with all its 
incidents, has been confided to the action of the federal 
government. In 1806, under this power, congress under- 
took to lay out and establish a road from Cumberland, 
in the state of Maryland, to the state of Ohio, which 
was subsequently extended beyond its original limit. 
This exercise of the power has been the subject of much 
discussion, and of considerable political excitement. The 
original act provided for the assent of the states through 
which the road was to be constructed, a provision well 
calculated to allay any excitement, to prevent any resis- 
tance, which at the time might otherwise have arisen ; 
a course of legislation, however, which is not to be com- 
mended. If congress has a constitutional power to estab- 
lish a road through one or more state or states, it is a 
power not dependent upon the will of the states, and 
should be exercised upon the sole responsibility of the 
government which has the power. The federal govern- 
ment has a right to take private property for its public 
functions, to the same extent and upon the same princi- 
ple upon which the several state sovereignties take pri- 
vate property. 

If congress has not power within itself to construct a 
road, or embark in any other enterprise, the road or the 
enterprise should be left to some other power which may 



THE SCIENCE OF GOVERNMENT. 137 

have the authority. Heretofore this exactness and pre- 
cision has not been of urgent and unyielding necessity ; 
but the importance of precision and exactness in the exe- 
cution of every power contained in our system, composed 
of distinct sovereignties, is becoming more visible and 
apparent every hour. A government which shall exercise 
any of its powers by the consent or at the will of another 
government, will find it difficult to resume them, and may 
ultimately lose all its powers. The true and the only 
safe theory of our system is, that neither the national or 
the state sovereignty should usurp or exercise a power 
not its own ; that neither should shrink from a perform- 
ance of its duty, or from the exercise of its constitutional 
authority, leaving the result- and the consequences to 
take care of themselves. The assumption, as has already 
been stated, in which our system had its origin, depends 
upon the integrity and intelligence of the people. This 
can be improved and sustained by the intercourse of 
mind with mind, by an exchange of its attainments. This 
is generally understood and conceded. It is essential to 
every class of the community ; and there is no difference 
in the nature of the result which is produced upon those 
of little or no education, and upon those of more extended 
study and information. Every individual who visits for 
the first time a distant or neighboring place or commu- 
nity, carries with him, in his own opinion, a portion of 
the character, dignity, and importance which he is accus- 
tomed, or which others are accustomed, to ascribe to the 
place and its inhabitants from which he goes. Almost in- 
stantly upon his arrival, he discovers many things, hears 
modes of expression, perceives habits of life, which to 
his mind, in his judgment, are objectionable, useless, or 
pernicious. Soon the scales fall off, and he learns that he 
left at home peculiarities not less objectionable than arc 
those by which he is surrounded. He returns qualified 

18 



138 THE SCIENCE OF GOVERNMENT. 

to aid in the correction of his own defects, and improved 
by the acquisition of some thought, of some knowledge, 
which he had not previously had or attained. He returns 
also with a more favorable opinion of the people with 
which he may have associated, and is more competent 
and more willing to determine accurately in relation to 
their conduct and motives. His mental vision, his judg- 
ment, becomes enlarged. The facility of correspondence 
and intercourse which is promoted by the establishment 
of post-offices and post-roads, must therefore be regarded 
as an important means of creating and of maintaining a 
knowledge of, and respect for, those who, although distant 
from ourselves, and having local interests diverse, and 
possibly adverse in a limited sense to our interests, are 
nevertheless bound by the same institutions, by the same 
general fundamental principles of political economy by 
which we are bound and protected. In this way our 
union will not depend exclusively upon a declaration 
engrossed upon parchment, but will find its chief support 
in our affections and in our judgment. 

The purpose of government, the conduct and manage- 
ment of its operations, are accomplished by the facility of 
intercourse which is furnished by an exercise of the 
power under consideration. These suggestions are suffi- 
cient to show that the establishment of post-offices and 
post-roads is not to be regarded merely as an ordinary 
convenient business matter, but as one of the principal 
implements by which our institutions are to be upheld, 
improved, and rendered available in the promotion of 
civilization and of freedom. It must also be seen, that 
the federal government is the most appropriate sove- 
reignty by which the power of establishing post-offices 
and post-roads should be exercised and controlled. If 
the power had been intrusted to the several states, great 
embarrassment might and no doubt would have arisen. 



THE SCIENCE OF GOVERNMENT. 139 

As it now is, no state can exclude from transportation by 
the mail -any matter or thing which the federal govern- 
ment may think reasonable or proper to admit. Some of 
those who have discussed the constitution of the United 
States, and the form of government upheld by it, have 
maintained that the power over post-offices and post- 
roads is concurrent in the several states, and may be 
exercised by them in subordination to the power of con- 
gress. This is sustained, upon the assumption, that the 
states are not prohibited from its exercise ; that there is 
nothing in the power or its subject-matter, which may 
not be exercised by both governments at the same time, 
without prejudice or interference. 

If this be the true exposition, the states may establish 
a post-road, or post-office within its own territory, where- 
soever congress has omitted to establish any* This 
would not be convenient to the people of the country as 
a whole, and might render the means of communication 
more uncertain and more expensive. It is a matter of 
fact, that some governments have assumed to open sup- 
posed suspicious correspondence, — a power not to be 
justified in its exercise unless, and only in extreme cases, 
where the safety and integrity of the government and 
its existence might be endangered by a neglect of its 
exercise. 

If this supposed right of supervision is, under any cir- 
cumstances, to be exercised, it should most certainly be 
under the authority of the federal government, which is 
charged with all the foreign relations of the country, and 
also with a duty to uphold its own integrity, and the 
republican form of government of the several states. 
All the reasoning which may be used to show the fitness 
and even necessity of uniformity of action, applies to 

* Story on Con. U. States, book 3, eh. 18, sec. 556. 



140 THE SCIENCE OF GOVERNMENT. 

this power with great force. No state has undertaken to 
establish post-offices and post-roads, and probably may 
not make the attempt ; and no state can undertake to 
supervise, or in any manner control those established by 
the federal government. 

Another power conferred upon congress was and is 
designed " to promote the progress of science and useful 
arts, by securing for limited times to authors and invent- 
ors the exclusive right to their respective writings and 
discoveries." No such or similar provision was contained 
in the articles of confederation, by which the several 
states, before the adoption of the constitution, were to 
some extent regulated in their fortunes and in their inter- 
course with each other. The several states passed laws 
upon this subject to suit themselves. When these articles 
were abandoned for a more perfect union, the power to 
encourage the advancement of the arts and sciences was 
conferred upon congress without objection. It could not 
be made effectual, for the protection and benefit of indi- 
vidual authors and inventors, by the several states as 
independent sovereignties. The propriety of the power, 
and of its enlarged and liberal exercise, cannot be doubted. 
Individuals cannot devote their time and lives to the 
attainment of extensive or important knowledge, unless 
they can derive some personal benefit from their labor. 
In every useful invention, in the production of useful 
writings, the public have as much, and frequently a greater 
interest than the individual inventor or writer can have. 
Every measure which can with propriety be adopted to 
enlarge and extend the progress of science and of the 
arts, is calculated to accomplish the elevation of the peo- 
ple, and must therefore be regarded as of the utmost 
importance. The effect of our system, and the encour- 
agement which it affords to the promotion of knowledge, 
has been apparent. Much advancement has been made, 



THE SCIENCE OF GOVERNMENT. 141 

in fact it may be regarded as characteristic, and may be 
said of the American people, that they are progressive, 
inventive, and suggestive, in all their operations. Their 
indifference to, and disregard of, ancient landmarks, well 
in itself when cultivated in moderation, has occasionally 
produced more haste and rapidity than progress. A 
striking and peculiar difference in the matter of science, 
of art, and of knowledge in general upon all subjects, 
exists between our country and many other civilized 
nations. With few individual and prominent exceptions, 
we do not boast of the number of our eminently learned 
and able men, standing as it were upon a pedestal, far 
above their surrounding fellow-citizens. In many other 
countries, some few are found occupying such elevated 
positions. In this country, knowledge is generally dif- 
fused • the entire population have access to the sources 
of knowledge. Public schools are established and sup- 
ported in many states at the public expense, which are 
open to all who are willing to accept the benefits which 
may be derived therefrom. Academies, private literary 
institutions, and colleges are abundant, so that every 
American citizen, and every resident, although not a citi- 
zen, may easily obtain all the knowledge which his situa- 
tion may require, or which his ambition may induce him 
to attain. The result of this provision for the mainte- 
nance of an intelligent, well educated people, is manifest 
in all the relations of life even to a casual observer, and 
it may, in truth, be said, that the people of this country 
have acquired, as a whole, more learning and information 
than any other population of equal number can exhibit. 
The cause of this diversity or peculiarity, deducible from 
a comparison with other countries, is obvious. In this 
country, few individuals can afford the money or time 
requisite to acquire any more knowledge than their daily 
pursuits require ; they cannot devote an entire life to the 



142 THE SCIENCE OF GOVERNMENT. 

acquisition of knowledge merely and solely for the sake 
of .its attainment. They must use their capital, mental, 
pecuniary, and physical, for their support, and for the 
education and improvement of their families. Knowl- 
edge in this country is, as a distinguishing feature, sub- 
stantial and practical in its results. 

Although our individual knowledge may not be so en- 
larged upon any particular subject, such as we have ex- 
tends to a great variety of subjects. We know some- 
thing upon almost every subject. This arises from the 
necessity imposed upon every individual to keep himself, 
so near as may be, upon equal ground with his neighbor, 
to understand to some extent the science of government 
and the practical working of our political system, so as to 
discharge with fidelity his duty as one of the people, who 
are the source of power, and the object of its protecting 
influence. This diversity of knowledge is not only re- 
quired by, but is a result of, our institutions. It may be 
illustrated by reference to the legal profession. In Eng- 
land, the lawyer devotes himself almost entirely and ex- 
clusively to the acquisition of a knowledge, and to the 
exercise of some particular branch or department of legal 
science, — selecting that which may harmonize with his 
peculiar habit of mind. Not so in this country, in which 
a lawyer is supposed to know so much of any and every 
department as he does of any other of legal science ; 
thus extending his knowledge and practice to every 
branch of his profession. The power of congress to pro- 
mote science and art is in no sense local, or more appli- 
cable to any one of the several states than to any other ; 
the object designed to be accomplished by it, is important, 
and essential alike to every state and to every section o 
the country; uniformity of protection to the author and 
to the inventor is also desirable. This uniformity can- 
not be attained by state legislation. The authority of 



THE SCIENCE OF GOVERNMENT. 143 

congress over this subject, so far as I know, has always 
been regarded as exclusive, and over which no concur-, 
rent power has been claimed in behalf of the several 
states. 

Another power of congress is, to define and punish 
piracies and felonies committed on the high seas, and of- 
fences against the law of nations. This power is of an 
important character ; the peace and welfare of the coun- 
try depend much upon the fidelity and firmness with 
which it is executed. It is supreme in the federal gov- 
ernment, and in its character and purpose must be exclu- 
sive, upon the broad principle, that a state government 
cannot exercise its authority beyond its own jurisdiction. 
Since the adoption of the federal constitution, any and 
every power of the several states over piracies or felo- 
nies upon the high seas, has been merged or transferred 
to the federal government. Offences against the law of 
nations constitute no part of the criminal code of the 
several states, are not the subject of state control or in- 
terference. Every ship which is owned by a citizen or 
citizens of the United States, which rightfully sails under 
its flag, upon the high seas, is within the jurisdiction of 
the federal government, and not within the jurisdiction 
of the individual state of which the owner or owners 
may be citizens. Offences which may be committed on 
board such ship are amenable to the legislation of con- 
gress ; any insult or injury done to such ship, by the au- 
thority and under the direction of a foreign government, 
is an insult and injury to the national government, and 
their prevention, remedy, and redress, are to be sought 
for and to be had by the sovereignty invaded. Offences 
of a piratical and felonious character upon such ship, upon 
property or persons on board, are punished by the gov- 
ernment whose citizens and property have been assailed, 



144 THE SCIENCE OF GOVERNMENT. 

or, in the case of certain offences, which are regarded as 
feeing against the peace and security of all nations alike, 
they may be punished by any government within whose 
territory they may be found, because they are regarded 
as a violation of the safety and security which every na- 
tion concedes to every other, and because every nation 
has an equal interest in their prevention and suppression. 
Piratical and felonious offences upon the high seas, have 
been the subject of legislation by the congress of the 
United States from the commencement of its jurisdiction 
or sovereignty. This legislation has been firm and severe 
in its penalties, and has been carried into effect under 
every reasonable safeguard, which the protection of the 
innocent or the punishment of the wrong-doer requires. 
More than this, in 1820 congress, under severe penalties, 
made the slave-trade carried on by its citizens piracy, 
and thus in advance of other nations did much to dimin- 
ish the evil of this odious traffic. By the statute refer- 
red to it is provided, " that if any citizen of the United 
States, being of the crew or ship's company of any for- 
eign ship or vessel engaged in the slave-trade, or any per- 
son whatever being of the crew or ship's company of any 
ship or vessel, owned in the whole or part, or navigated 
for, or in behalf of, any citizen or citizens of the United 
States, shall land from any such ship or vessel, and on 
any foreign shore seize any negro or mulatto not held 
to service or labor by the laws of either the United 
States, or territories of the United States, with intent to 
make such negro or mulatto a slave, or shall decoy, or 
forcibly bring or carry, or shall receive such negro or 
mulatto on board such ship or vessel, with intent as afore- 
said, such citizen or person shall be adjudged a' pirate ; 
and on conviction thereof, before the circuit court of the 
United States for the district wherein he may be brought 



THE SCIENCE OF GOVERNMENT. 145 

or found, shall suffer death." * So early as 1794, congress 
prohibited the carrying on the slave-trade from the United 
States to any foreign place or country .f And from that 
early period to the present, efforts have been made by 
legislation to prevent the trade. The statute of 1820 
confines its penalties to American citizens, and excepts 
any interference with slavery so far as it is recognized by 
the constitution of the United States. It is conceded by 
writers upon international law, that slavery is a violation 
of the law of nature ; that all men by nature are born 
free ; but it is not regarded as a violation of the law of 
nations. It is said to be a matter of municipal regula- 
tion, and is controlled by every nation, in accordance 
with its own sense of right and wrong, and not to be con- 
trolled by any other nation. So far as this principle ope- 
rates to prohibit a nation from interfering with the in- 
ternal affairs of another, it is undoubtedly sound, inas- 
much as the morals of every nation, when exhibited only 
within its own territory, are matters peculiarly appertain- 
ing to itself. When, however, a nation permits its ships 
or citizens to encroach upon territory over which it has 
no jurisdiction, and to engage in the slave-trade, it can- 
not well complain, if other nations regard it as no less 
objectionable than are those acts which are regarded as 
offences against every nation. 

Piracies and felonies upon the high seas operate in 
their consequences mainly upon individuals and indi- 
vidual rights, and are not considered so extensive and 
injurious as are offences against the law of nations. 

The principal offences against the law of nations 
which are cognizable by judicial tribunals, are : — First. 
Offences against ambassadors, which have already been 



* Stat, at Large, U. S., vol. iii. pp. 600, G01 ; May 15, 1820. 
f Ibid. vol. i. p. 347; March 22, 1794. 

19 



146 THE SCIENCE OF GOVERNMENT. 

referred to in the suggestions made in relation to the 
rights of diplomatic- agents. Second. A violation of safe 
conduct. Third. Libels against sovereign princes and 
eminent persons in foreign states. Fourth. Piracy.* A 
safe conduct is either express or implied. Express safe 
conducts have been given only in time of war. All 
foreigners, who are in the territories of any state in time 
of peace, are there under an implied safe conduct. Dur- 
ing the continuance of safe conduct, either express or im- 
plied, a foreigner is under the protection of the sove- 
reign ; and if any violation of his rights, either in person 
or property, be not punished by the sovereign, it becomes 
just ground of war. It is provided, by a law of the 
United States, that if any person shall violate any safe 
conduct or passport granted under the authority of the 
United States, he shall, on conviction, be punished by 
imprisonment not exceeding three years, and be fined at 
the discretion of the court. That the United States may 
grant a safe conduct in time of peace or war, would seem 
to be a matter perfectly plain and clear ; and that this 
power cannot be exercised safely by the several states, 
because they cannot be presumed to know the condi- 
tion of the foreign relations of the country so fully and 
accurately as the federal government is required to know 
them. The policy in this particular of the general gov- 
ernment cannot be anticipated by state authority. Whe- 
ther a safe conduct, retrospective in its operation, can be 
given under the authority of the federal government, 
which shall be regarded as a protection and immunity to 
the holder, for acts by him previously done, is undoubt- 
edly a question of grave import and of difficulty. Under, 
some circumstances, I have no doubt, it may, in the 



* Wildman, Law of Nations, vol. i. p. 199, et seq. 



THE SCIENCE OF GOVERNMENT. 147 

exercise of its admitted sovereignty, grant such pro- 
tection. 

The federal government cannot release an individual 
from the consequences of an offence against an individual 
state, which in its character and consequence is merely 
and exclusively local and confined to the state. Equally 
true it is, that the federal government, through its execu- 
tive, has power to release offences against the nation. 
Whenever an individual, a citizen of a foreign govern- 
ment, shall do an act by the direction and authority of 
his sovereign which may be an offence against a state 
law, it may be for the interest of the country, of the 
United States, to require from such foreign sovereign the 
proper indemnity, and at the same time to permit and 
require the individual, under a safe conduct, to leave the 
territory of the United States. A case of this descrip- 
tion occurred in connection with the Navy Island trans- 
action, which is familiar to you. Persons, some of whom 
were undoubtedly American citizens, were engaged in 
an unlawful enterprise against a neighboring province, 
which resulted in an encroachment upon the territory 
of the United States and upon its sovereignty by *a 
destruction of the steamboat Caroline, within the juris- 
diction of the United States ; an act altogether inex- 
cusable, upon the ground that a nation can only exercise 
the right of war upon its own territory, or upon that of 
its enemy, or in one which is vacant or common to all 
the world. No nation can rightfully pursue its enemy 
upon neutral ground. Amos Durfee, an American citizen, 
on board the Caroline, was killed, and Alexander McLeod 
was indicted in a state court of New York for his sup- 
posed murder. The act of McLeod was approved and 
adopted by the British government, and his surrender 
demanded. Mr. Fox, in behalf of the British govern- 
ment, addressed the then secretary of state upon the sub- 



148 THE SCIENCE OF GOVERNMENT. 

ject, and said, "the grounds upon which the British 
government make this demand upon the government of 
the United States, are these : that the transaction, on 
account of which Mr. McLeod has been arrested, and is 
to be put upon his trial, was a transaction of a public 
character, planned and executed by persons duly em- 
powered by her majesty's colonial authorities, to take 
any steps and to do any acts which might be necessary 
for the defence of her majesty's territories, and for the 
protection of her majesty's subjects ; and that conse- 
quently those subjects of her majesty who engaged in 
that transaction were performing an act of public duty, 
for which they cannot be made personally and individu- 
ally answerable to the laws and tribunals of any foreign 
country." 

The American government, inclined to yield to this 
demand, inclined to surrender the party accused, holding 
his sovereign responsible, found itself embarrassed by the 
peculiarity of our system. The facts presented a case 
apparently beyond the control of the federal government, 
acting independent of, and without the concurrence of 
the state authority. Fears were entertained by portions 
of the community, that a controversy with Great Britain 
might arise. If the territory of one of the several states 
is invaded by a foreign power, or by the authority of 
such power, or by persons acting under color of such 
authority, whose conduct is subsequently approved and 
adopted by the assumed principal, it is the duty of the 
United States to repel, and to redress the injury ; although 
done upon the territory of a particular state, it is a vio- 
lation of, and an attack upon, the sovereignty of the 
United States. The federal government should, therefore, 
have the power which such an exigency may require. 
The several states, by conferring upon the federal govern- 
ment, through the instrumentality of their citizens, the 



THE SCIENCE OF GOVEKNMENT. 149 

people, the management of the foreign relations of the 
country, have conferred authority sufficient to execute 
and uphold the trust. And I have no doubt that the 
federal government might rightfully have conferred upon 
McLeod a safe conduct, which the state judiciary should 
and would have respected ; if it had not, the judiciary of 
the United States could and would have given effect to 
the immunity conferred upon the party accused. The 
government of Great Britain having adopted the act of 
McLeod as an act for which it held itself responsible, it 
was competent for the government of the United States, 
through its executive councils, to accept or reject this 
adoption, and at its election to hold the individual, or the 
government which had adopted his act, as responsible. 
It may have been essential to the peace and security of 
the country, that the United States should accept the 
proffered adoption. Such an event would defeat, would 
be inconsistent with the purpose of our system, if the 
United States could not execute the power of con- 
ferring upon the individual a status, or position, which 
would shield him from state control. Whenever the 
executive recognize a particular individual as the 
ambassador of a foreign government, every tribunal, 
state and national, is bound to accede to the individ- 
ual the protection which, by the law of nations, is appro- 
priate to his station, and the ambassador may plead his 
station as a protection from state power. The recurrence 
of a similar case has been provided for by statute * In 
1842, a statute was passed by congress, which provides 
" that either of the justices of the supreme court of the 
United States, or judge of any district court of the 
United States, in which a prisoner is confined, in addition 
to the authority already conferred by law, shall have 

* Statutes at Large, United States, vol. v. p. 589. 



150 THE SCIENCE OF GOVERNMENT. 

power to grant writs of habeas corpus in all cases of 
any prisoner or prisoners in jail, or confinement, where 
lie or they, being subjects or citizens of a foreign state 
and domiciled therein, shall be committed or confined, or 
in custody under or by any authority or law or process 
founded thereon, of the United States or of any one of 
them, for or on account of any act done or omitted under 
any alleged right, title, authority, privilege, protection, or 
exemption, set up or claimed under the commission or 
order or sanction of any foreign state or sovereignty, the 
validity and effect whereof depend upon the law of 
nations, or under color thereof. And if upon return of 
the process and -a hearing thereon, it shall appear that 
the prisoner is entitled to be discharged from such con- 
finement, commitment, custody, or arrest, for or by rea- 
son of such alleged right, title, or authority, privileges, 
protection, or exemption, so set up and claimed, and the 
law of nations applicable thereto, and that the same 
exists in fact, and has been duly proved to the said justice 
or judge, then it shall be the duty of the said justice or 
judge forthwith to discharge such prisoner. 

This statute is no doubt a constitutional exercise of the 
power of congress, and affords an easy remedy to the parties 
who may come within its provisions, but it cannot be re- 
garded as the creation of a new right, or as taking away 
the power of the several states, or as adding to the powers 
of the federal government. It cannot be regarded as con- 
ferring upon an individual who may be entitled to receive 
the protection of the statute, any new or additional right. 
Privileges and immunities conceded to an individual by 
the law of nations, do not proceed from, or depend for 
their efficacy upon, the legislation of any individual 
country. They depend upon the assent and recognition 
of those nations which consider themselves bound by the 
law of nations. The inability or incapacity of a nation, 



THE SCIENCE OF GOVERNMENT. 151 

by reason of its peculiar system or internal construction, 
to uphold such rights, does not and cannot furnish an 
excuse or justification for the violation or disregard of 
the rights of an individual, which the law of nations may 
have conferred upon him. It is upon this ground, inde- 
pendent of the statute to which reference has been made, 
that the federal government, as I have suggested, through 
its executive power, and the aid of its judiciary, might 
and should, in its discretion, have released McLeod from 
the consequences of an act which his sovereign had 
assumed* 

Another prominent class of offences, for the prevention 
and suppression of which the law of nations has regard, 
is that of libels against sovereign princes and eminent 
persons in foreign states. So far as I am aware, no legis- 
lation has been had by congress, to provide for the ascer- 
tainment and for the punishment of this class of offences. 
It is a matter exclusively within the power of the federal 
government. Notwithstanding the unlimited freedom of 
the press which has been indulged in this country, and 
carried frequently even to an excess derogatory to the 
intelligence and character of the people, and to our in- 
stitutions, no serious difficulty from such excess has oc- 



* The judiciary of a state cannot be forcibly resisted or despoiled of its right 
to retain and exercise its jurisdiction, when it shall have attached. This is a 
general principle, applicable to all judicial tribunals, and especially is it applica- 
ble to the state and national judiciaries, acting under different sovereignties. 
"Whenever a party sets up a right or title under a treaty, or law of the United 
States, such party, under certain regulations, has a right to resort to the judi- 
ciary of the United States. This right is made available by appeal, or by a 
transfer from a state court to a court of the United States, or by a writ of error, 
from the supreme court of the United States to the state court. The statute 
referred to must be regarded as providing a mode of transfer, by habeas cor- 
pus, of ;i party from a court of one jurisdiction to that of the other, not upon 
any ground of supremacy which one court has over the other, but upon the 
title, of the party impleaded. The statute cannot be sustained, as a constitu- 
tional provision, upon any other hypothesis. 



152 THE SCIENCE OF. GOVERNMENT. 

curred in our relations with foreign countries. It must 
be admitted, however, that difficulty may arise from this 
source, inasmuch as every nation is properly mindful of 
the character and respect due to its government, its sove- 
reign princes, and to its eminent public men. Every in- 
dividual regards the opinion of his neighbors, in relation 
to himself, as of considerable importance. The law of 
every country, where law is regarded as the standard of 
right, protects its citizens from libels. This protection is 
due to them, and is also due and essential to the safety 
and well being of the public, of the community as a 
whole; the peace and repose of society cannot be sus- 
tained without such protection. Equally important it is 
to nations, that their intercourse with each other should 
be courteous and respectful. In vain would it be, for a 
nation to admit it has no right to interfere in the internal 
or domestic affairs of another nation, if it may, through 
the press and the language of its people, assail the sove- 
reign, or those who stand high in the public stations or 
in the affections of such foreign nation. The people of a 
country always cherish the reputation and the acts of its 
eminent men, as they cherish the land of their birth. 
More than this, the people of every civilized country 
cherish and respect the reputation and character of the 
great, the good, and the learned men of other countries, 
as an important and valuable example to themselves. 
The results which follow from a cultivation of science, 
from the acquisition of art, the labor and investigations 
of the learned, are not and cannot be confined within 
territorial limits. The name and memory of Washington 
and of his acts, are regarded in other countries with an 
intensity of admiration, which compares favorably with 
the sentiments and emotions with which his name is as- 
sociated in every hamlet and in every house within the 
limits of his and of our country. Contributions from 



THE SCIENCE OF GOVERNMENT. 153 

abroad, have been made to the monument which his coun- 
trymen propose to erect in commemoration of his vir- 
tues. The law of nations, which is mindful of the re- 
spect due to foreign princes and to foreign eminent per- 
sons, rests upon an enlarged, liberal, and cultivated state 
of morals, of manners, and of society ; and, although no 
statute has been passed to carry the principle of the law 
into effect, it has been regarded, with some few unimpor- 
tant ebullitions of temporary passion not approved or in- 
dulged in by the mass of the people, and has been en- 
forced by the self-respect of the people, and thereby our 
civilization, and the effect of our liberal and free institu- 
tions, have been made manifest. 

I shall call your attention, in few words, to another of- 
fence against the law of nations, that of piracy. Upon 
this subject, the legislation of congress has been constant 
and abundant, from the commencement of the federal 
government. The propriety of guarding, so far as may 
be, against this offence, is universally conceded. As has 
been before said, the slave-trade was made piracy by a 
law of the United States, when carried on by its own 
citizens, in advance of similar legislation by other coun- 
tries. American ships engaged in the trade are subject 
to condemnation and forfeiture. In addition to the pro- 
visions applicable to this subject, the legislation of con- 
gress is replete witli provisions designed to prevent indi- 
vidual and unauthorized inroads or invasions upon other 
nations, with which the United States are at peace. Re- 
sort has, on several recent occasions, been had to these 
provisions, and more than once, for the purpose of sup- 
pressing and punishing such individuals as may have 
engaged therein. The success of these efforts has notO 
been such as might have been expected. American citi- 
zens enjoying every freedom which is compatible with 
the safety of free institutions, naturally desire that their 

20 



154 THE SCIENCE OF GOVERNMENT. 

supposed freedom from oppression may be extended to 
the people of every other land. The oppressed of every 
country find in the American heart a sympathy which, 
unless chastened and guarded, may defeat itself, may sub- 
vert its purpose, and may ultimately become the means 
of our own destruction. It is no part of our mission or 
duty to extend our freedom, our civilization, our institu- 
tions, or our religion, by a disregard of the rights of 
others, or by a destruction of the institutions of other 
countries, that our institutions may be erected upon their 
ruins. In this respect, public opinion as a whole, and the 
influence derived therefrom, has been in favor of justice 
and of right ; has been in favor of extending our principles, 
not by force, not by invasion, but by the purity and fidel- 
ity with which we exhibit in and by our example and 
conduct, the power and capacity of free institutions, and 
their adaptation to all the wants, physical, mental, and 
moral, of a well educated people. The several powers of 
the federal government have been referred to ; they 
have been stated and discussed, so far as is necessary to 
exhibit their general features, and the purpose designed 
to be accomplished. These powers are adapted to the 
end sought, and they show most distinctly the knowl- 
edge and appreciation of political economy which was 
enjoyed by those who matured our system. Political 
economy is not and cannot rightfully be regarded as an 
exact science, applicable in the same terms to every 
country and to every people. The purpose which it is 
designed to accomplish, whenever and wherever it may 
be applied, is the same. Its object is to uphold society, 
to sustain and maintain inviolate the institutions of gov- 
ernment, of society. It will readily be perceived, that an 
absolute government, one w^hich exists by its own power, 
and which regards no will except its own, must be con- 
trolled by machinery and by implements not essential to 



THE SCIENCE OF GOVERNMENT. 155 

a liberal and free government, which acts through the in- 
strumentality, more or less immediate, of the people. It 
must also be perceived, that liberal institutions are not 
and cannot be adapted to the condition of every people. 
The climate is not the same in every country, the pro- 
ducts of the earth are diverse, and must receive each its 
own peculiar culture, otherwise they will be imperfect 
and of little value. The mind of man and his habits are 
controlled to some extent by the external and physical 
matters which surround him ; a disregard of this fact in- 
duces some to look only to the natural rights of man, re- 
gardless of the conventional forms in which these natu- 
ral rights must be moulded, and by which they must be 
regulated and diminished. If man had attained, or could 
attain, a perfect knowledge of his duty, of his interest, of 
right and justice, accompanied with an uniform and un- 
yielding disposition and willingness to do right and jus- 
tice, his own will would be adequate for his government 
as an individual and as a member of society. Such is 
not the fact. He must, therefore, be subject to control, 
and that control must be equal to his inability or unwil- 
lingness to do right and justice. It has been said, that 
all men are born free and equal. This is the position 
from and in which all our institutions take their origin, 
and in the sense in which the words are used in our sys- 
tem they must be regarded as sound and as true. In 
the sense in which they are frequently used by politi- 
cians and partisans, they are not sound or true, either in 
the law of God, or of man. All men are alike entitled 
to be protected in person, in character, in property, and 
in the exercise and cultivation of their endowments. 
And so far as, by education and integrity, they make 
themselves competent to discharge the public trusts, they 
have equal right to participate in the exercise of such 
trusts. 



156 THE SCIENCE OF GOVERNMENT. 

Our theory proceeds one step beyond this, and asserts 
that men, educated and intelligent, not only have an 
equal right, but must be and in fact are competent to 
enjoy and to exercise, all the rights and duties which ap- 
pertain to a state of society. It does not, however, 
assume that men can live isolated from each other and 
without society, or that they can live without law. In 
harmony with this view, our system provides and con- 
tains within itself ample means and opportunities for the 
cultivation and advancement of the people ; and if they 
do not avail of the benefits it is their fault, and not the 
fault or neglect of government. Experience thus far has 
shown, that a large proportion of the people are willing 
to use the privileges conferred, and are in fact competent 
to fulfil the duties required of them. That all the peo- 
ple are or ever will be competent, cannot with propriety 
be said ; but so long as a majority are, the public institu- 
tions and the system of government will be adequate to 
their purpose. The powers of the federal government to 
which I have referred are supreme ; the several states 
may exercise similar powers for their own individual pur- 
poses ; to this extent there has not been any diversity of 
opinion. I have, throughout, assumed that the powers of 
the federal government are both supreme and exclusive ; 
that no state can rightfully exercise any of these powers 
for the purpose of executing or carrying into effect the 
duties of the federal government ; that the powers which 
rightfully and constitutionally appertain to the several 
states are certain and permanent, and are not depen- 
dent upon the will of congress, or upon the perform- 
ance or non-performance by congress of its duties. If 
the question be considered upon principle, and without 
reference to judicial dicta or decision, no sufficient reason 
can be suggested in favor of a contrary position. The 
theory which assumes, that the several states may exer- 



THE SCIENCE OF GOVERNMENT. 157 

cise the powers of the federal government for the pur- 
poses of the federal government, has never been asserted 
in direct terms, because the enunciation of such theory 
would disclose its fallacy. The language used by those 
from whose theory upon this subject I have ventured to 
dissent, is, that the several states may exercise some of 
the powers conferred upon the federal government in 
cases in which congress has not exercised them, and 
where no statute of the United States contravenes or con- 
flicts with such exercise of power. This theory had its 
origin at the time of the adoption of the constitution, and 
was somewhat countenanced by the writers of the Fede- 
ralist, who, anxious to procure an adoption of the instru- 
ment, exhibited and illustrated its powers in the most 
favorable aspect which could with feasibility be pre- 
sented, so as to avoid an offence to state pride. When 
the constitution was submitted to the people for adoption 
and approval, state rights were as zealously maintained 
as they ever have been, and every effort was made by 
the friends of the proposed system to dispel the fears 
which were entertained, actual or feigned, that a consoli- 
dated central government was designed, or might, with- 
out design, be the result. A slight examination of the 
papers, designated the Federalist, will show the peculiar 
sensitiveness, at the time, of the public mind. These 
papers cannot, in all cases, although written by able, 
eminent, and patriotic citizens, be regarded as the most 
safe or authoritative source of construction. State right 
and state pride are certainly more endangered and 
lessened by having its legislation and its power depen- 
dent upon the action of another government, by having 
its legislative enactments set aside by the legislation of a 
superior government, than they can be by an adherence 
on the part of the state to its own admitted, inclisputecl, 
and indisputable power, although it may thereby be less 



158 THE SCIENCE OF GOVERNMENT. 

extensive, and confined within narrower limits. If this 
be the true theory, the statutes of one government, when- 
ever rightfully and constitutionally passed, can never 
come in conflict or in collision with those of another. 
Whenever either government shall transcend its legiti- 
mate jurisdiction or sovereignty, it will be checked and 
restrained by the interposition of the judiciary ; and the 
unity and harmony of our complex system, which was 
sought to be attained, will be so perfect as it can be. 
The position, that the several states may act because 
congress has not acted upon a particular subject, cannot 
be regarded as logical or judicious, if the national and 
state sovereignties are to be regarded as distinct and 
independent of each other, each having been intrusted 
with certain powers for different purposes, for the proper 
and faithful execution or exercise of which each, for its 
own acts or omissions, is responsible. It is not necessary 
or expedient, that all the powers of government should 
be in constant exercise ; they are to be used as the exi- 
gencies of society, which are always changing, may re- 
quire. Whenever congress shall omit to exercise any 
portion of the authority with which it is vested, the legal 
intendment and presumption to be made from such an 
omission is, that the authority ought not to be exercised. 
If congress, in relation to a subject over which it may 
rightfully legislate, should, by its enactment, say, that no 
legislation thereon is at a particular time or period fit or 
necessary to be had, such declaration would be regarded 
as conclusive upon the subject. I am unable to perceive 
any difference in principle between such legislative de- 
claration, and an entire absence of legislation or declara- 
tion upon the subject. I have referred to the matter of 
exclusive power in the federal government, over and in 
relation to all matters confided to it, more frequently and 
distinctly than any inconvenience or difficulty which has 



THE SCIENCE OF GOVERNMENT. 159 

occurred may seem to require. As the territory over 
which the United States has authority has been increased 
since the adoption of the constitution, and may possibly 
be extended; as the number of the several states has 
been and may be enlarged ; as the interests, occupations, 
and habits of the people of one portion of the country 
may become more and more diverse, distinct, and dif- 
ferent from those of other portions, the urgency and 
necessity of a well-defined, distinct, and constitutional 
line or division of power between the national and state 
sovereignties, must and will be more and more apparent. 

The national government is more exposed to danger 
than is the state, and in one of its departments is more 
exposed to corruption, and is more likely to encounter 
in its progress the effects of any sudden and temporary 
passion or excitement, in and to which the people may 
be and are liable to be drawn. Our security and safety 
from these dangers, from these causes, and the integrity 
of our system, must be obtained by a full and manly con- 
cession to each sovereignty of its rightful power and 
capacity ; by a firm, constant, and prompt resistance to 
any exercise, by the one or by the other, of any and of 
every power not clearly deducible from our written char- 
ters or constitutions, construed upon the principles right- 
fully applicable thereto. If inconvenience and embar- 
rassment may or must arise from the existence of two 
sovereignties, the legitimate inconvenience and embarrass- 
ment resulting from the system as it is, is to be preferred 
to any other, is to be endured until the system shall be 
amended. They cannot be avoided or cured by any tem- 
porary, contingent construction, which must be inade- 
quate in itself, and liable to constant change. 

The legislative department of the federal government 
is admonished and controlled by the constitution in sev- 
eral important particulars, designed to guard private right 



160 THE SCIENCE OF GOVERNMENT. 

from unnecessary restriction or interference by the gov- 
ernment. " The migration or importation of such persons 
as any of the states now existing (at the adoption of the 
constitution) shall think proper to admit, shall not be 
prohibited by the congress prior to the year one thousand 
eight hundred and eight ; but a tax or duty may be im- 
posed on such importation, not exceeding ten dollars for 
each person." This provision might be relied upon, if 
considered without reference to the history and condition 
of the country at the time it was written, as having a 
tendency, by implication, to show that the power of regu- 
lating the migration and importation of persons is vested 
in congress. The clause recited was not designed with 
such intent, but relates exclusively to the subject of sla- 
very, to the importation of persons who might, by the 
laws of the several states, be regarded as property. It 
may be referred to as evidence of the construction which 
the framers of the constitution adopted in relation to 
other parts of the instrument. 

The prohibition is in its terms temporary, extending 
only some few years in its operation after the adoption 
of the constitution, and has now ceased to have any posi- 
tive operation. It furnishes a clear and conclusive impli- 
cation, that slavery as it then existed, and as it was by 
the constitution permitted to exist, was regarded as exclu- 
sively local in its character and in its existence. The 
clause is confined to the states existing as such at the 
time of the adoption of the instrument, which were thir- 
teen in number. Notwithstanding this prohibitory clause, 
if a new state, one which had not been established prior 
to the constitution, had been admitted into the union 
before the year eighteen hundred and eight, congress 
might have prohibited the migration or importation of 
slaves into such state. Whether the clause can be re- 
sorted to, for any purpose of elucidation, other than upon 



THE SCIENCE OF GOVERNMENT. 161 

the subject to which it refers, I do not consider. Another 
prohibition is found in the clause which says, " the privi- 
lege of the writ of habeas corpus shall not be suspended, 
unless when, in cases of rebellion or invasion, the public 
safety may require it." 

This provision exhibits the great attachment and even 
watchful solicitude of the American people, for their 
safety and security from and against the power of the 
government. This writ is, in fact, the most important 
element which any system can contain for individual 
indemnity from wrong and oppression. It is speedy and 
decisive in its operation, and is demandable as of right, 
although it may not be, and is not in practice, issued upon 
every application, when it is seen ,upon such application 
that the party applying is not entitled to the relief sought. 
This writ is, and has been, the constitutional shield of the 
English citizen from the encroachment of the crown, and 
its character and importance were brought by our ances- 
tors as one of their inalienable privileges. The same 
principle which established the security of the writ of 
habeas corpus, induced a provision, that no bill of attainder 
or ex post facto law should be passed. 

The other prohibitions are of a more general and pub- 
lic character and purpose. They provide that all capita- 
tion or other direct tax shall be levied in proportion 
to the population as ascertained in a census, for the tak- 
ing of which, at short intervals, provision is made. They 
also provide, that u no tax or duty shall be laid on arti- 
cles exported from any state ; no preference shall be 
given by any regulation of commerce or revenue to the 
ports of one state over those of another; nor shall ves- 
sels bound to or from one state be obliged to enter, clear, 
or pay duties to another." This provision insures the 
equality and relative importance of the states in their 
intercourse with each other, and leaves the energies of the 

21 



162 THE SCIENCE OF GOVERNMENT. 

citizen free to be exerted for his own benefit, and uncon- 
trolled, except within certain limits, by the government 
of which he forms a more immediate part, and which acts 
upon his neighbors, whose interests are closely interwoven 
with his own, at the same time, and with the same force 
and effect as it acts upon him. 

The instrument which grants the legislative power, 
prohibits the withdrawal of money from the treasury, ex- 
cept under appropriations made by law. It provides, 
that no title of nobility shall be granted by the United 
States ; that no person holding any office of profit or 
trust under the United States, shall, without the consent 
of congress, accept any present, emolument, office, or title 
of any kind whatever, from any king, prince, or foreign 
state. These powers, these restrictions, as has been said 
already, are designed to protect the several states and 
their citizens from foreign control or interference ; to 
protect the states from each other ; to protect the citi- 
zens, in some particulars, from state legislation ; to secure 
to the citizens of other countries such immunities of 
trade and of intercourse as may be conceded to them by 
contract, by law, by the laws of nations, or by our cour- 
tesy. They are competent to the end contemplated ; 
they exhibit the profound and far-seeing judgment, the 
love of humanity, the regard for private right, of those 
patriotic individuals who framed our constitution. In 
the construction of this instrument, they have erected to 
themselves an enduring, and, I trust, imperishable monu- 
ment. 



LECTURE VI 



THE STATE GOVERNMENT. — THE PURPOSE AND CHARACTER OF ITS LEGISLATION.— 
WITHIN CERTAIN LIMITS IT IS SUPREME, AND EXCLUSIVE OF FEDERAL LEGISLA- 
TION OR CONTROL. 



By the adoption of the federal constitution, the citi- 
zens of the several states, with the consent and approba- 
tion of the state sovereignties, became citizens of the 
United States, and conferred upon the federal sovereign- 
ty the powers which are defined and enumerated in its 
constitution. The people, as citizens of the United 
States, are one, and their relation to the federal jurisdic- 
tion is the same in every state. The several states, act- 
ing singly or together, in their political capacity, cannot 
resume the consent yielded to the people, and by them 
conferred upon the national government. The states, as 
sovereignties, cannot enlarge or diminish the power of 
the federal government, and cannot in any manner, ex- 
cept by suggesting the propriety of amendment, and by 
application to congress therefor, interfere with its consti- 
tution. The congress, whenever two thirds of both 
houses shall deem it necessary, shall propose amendments 
to the constitution of the United States, or on the appli- 
cation of the legislatures of two thirds of the several 
states, shall call a convention for proposing amendments, 
which in either case shall be valid to all intents and pur- 



164 THE SCIENCE OF GOVERNMENT. 

poses as part of the constitution, when ratified by the 
legislatures of three fourths of the several states, or by 
conventions in three fourths thereof, as the one or the 
other mode may be proposed by the congress. The re- 
lation of the people to their system of government con- 
stitutes an important and controlling element in any de- 
termination, which may be made upon several questions 
which have been discussed, and which may hereafter re- 
quire an adjustment. Certain supposed state rights, the 
supposed right of a state to secede from the union, the 
supposed right of a citizen of one state to become the citi- 
zen of another state, carrying with him the property and 
rights of property which may be conceded to him by 
the law of the state of which he may have been a 
citizen, present for consideration questions of great im- 
port. The decision of these matters, whenever decision 
shall be required, must be had by an ascertainment of 
the position which the several states and their citizens 
occupy in relation to each other and to the federal gov- 
ernment, This relation is susceptible of definition, and 
may easily be ascertained by reference to our system, as 
it is defined in its charters. It cannot be defined or as- 
certained, with safety or certainty, by a reference to any 
theory or system which any man or class of men may 
suppose the most beneficial to the people, or most in ac- 
cordance with their speculations. The national govern- 
ment has certain jurisdiction, which it exercises upon 
the people of the United States, which they cannot sub- 
vert or change, except by an amendment of the constitu- 
tion, or by revolution. This relation of the people to the 
federal government is direct, without any intervention or 
authority of the states as sovereignties. The state sove- 
reignty has certain jurisdiction, which it exercises upon 
its citizens, and is not amenable to the federal govern- 
ment for its exercise. The people retain their natural 



THE SCIENCE OF GOVERNMENT. 165 

rights, so far as they have not surrendered them to the 
national or state control. 

In the language of an amendment to the constitution 
of the United States, " the powers not delegated to the 
United States by the constitution, nor prohibited by it to 
the states, are reserved to the states respectively, or to 
the people." It is frequently said, that the laws of the 
United States are supreme, and that the legislation of a 
state, whenever it shall come in conflict therewith, must 
yield, upon the ground of superiority which one govern- 
ment has over the other. This mode of expression 
may be offensive to the sensibility of state pride, and on 
that account, and because it is not precisely accurate, is 
objectionable. The laws of the United States, constitu- 
tionally passed, are supreme, and no state law, if the state 
confines its action within its own jurisdiction, can or 
should come in conflict or opposition. If the congress 
enact a statute upon a subject not within its power or 
jurisdiction, it is unconstitutional and void ; and any state 
legislation rightfully and constitutionally had upon such 
subject, must prevail, although inconsistent with a law 
of congress. The construction of the several state govern- 
ments are substantially the same. Their departments are 
essentially the same, and they are similar to those of the 
federal government. The judiciary in some of the states 
is more dependent upon the will of the people than it is 
in other states, and is more so than is the judiciary of 
the United States. The right of suffrage, and the terms 
upon which it may be exercised, are not alike liberal 
and extensive in all the states, although it is broad 
enough to accomplish the purpose designed. Eligibility 
to office is more extended in some of the states than it is 
in others. In all, it is sufficiently extensive to answer the 
ambition of those who desire office. In many of the 
states, the legislature, frequently designated the general 



166 THE SCIENCE OF GOVERNMENT. 

court, has an annual session ; in other states the sessions 
are not so frequent. The several state constitutions con- 
tain provisions for their amendment, which are frequently 
exerted ; the legislation of all the states is changeable from 
year to year, or from session to session, so that the laws 
cannot be regarded as of a permanent and fixed cha- 
racter. This power of change is essential to the develop- 
ment of the resources and enterprise of the people, which 
are constantly changing, are constantly enlarged, and 
directed to new channels of improvement. It may be 
said, without doing violence to the truth, that this power 
of change is exercised more frequently than the public 
interest requires* 



* The constitution of Massachusetts contains a provision prescribing the 
mode in and by which it may be amended ; thus, upon well settled and 
familiar principles of construction, excluding any and all other modes of 
amendment. Notwithstanding this provision, the general court, on the 7th of 
May, 1852, passed a statute, designated " an act relating to the calling a con- 
vention of delegates of the people, for the purpose of revising the constitution." 
This act evidently contemplates and provides for an amendment of the consti- 
tution of the present system of government, and not for the suppression and 
overthrow of the present form, and the erection of a new system, or of a new 
constitution, upon the ruins of the old. In pursuance of this statute, a conven- 
tion is now (July 4, 1853) in session. It is a convention for one of two purposes, 
to wit, to amend or put down the present constitution. If it be for the purpose 
of amendment, it is unconstitutional and illegal ; and this view of the writer is 
sustained by the opinion of the justices of the supreme judicial court, which may 
be found in a supplement to the sixth volume of reports by Cushing. If the con- 
vention be for the purpose of establishing an entire new instrument and system, 
although it may propose to establish a similar instrument or system, it is revolu- 
tionary, disorganizing, illegal, and a reproach to the commonwealth. It stands 
upon no better foundation than stood the so-called Dorr Rebellion in Rhode 
Island, which the state resisted, and successfully. Those who consider the act 
as providing for an amendment, and to be sustained as such, regard the pro- 
vision in the constitution which provides for its amendment, as only directory ; 
that the constitution is at all times in the hands and power of the people. No 
theory or doctrine can be more dangerous, unsound, or subversive of our free 
institutions. Provisions are regarded as directory, in relation to time, when 
time is evidently immaterial, and when, upon any other construction, the pur- 
pose of government or some fundamental principle of right must fail. When- 



THE SCIENCE OF GOVERNMENT. 167 

In many of the states the constitutions are preceded 
by a preamble, or bill of rights, which consist in an enun- 
ciation or declaration of certain fundamental principles, 
which appertain, and should appertain, to the people and 
to free institutions. These are not the same in every 
state, but they are in harmony with each other, and of 
the same general character. These bills of right exhibit 
the character of the people by which they have been 



ever the fundamental law or constitution of a sovereignty prescribes a mode 
for its amendment, no reason can be assigned, and no one can rightfully say, 
that a different mode and form is equally competent. When a charter provides 
that the corporators, as a body, or that some board, or component part of a 
corporation, may make by-laws, they must be made in the prescribed mode ; 
they cannot legally or effectually be made in any other. In the case of 
Massachusetts, if its constitution is to be regarded, an amendment cannot be 
made by the people, without the concurrence of two thirds of the popular 
branch of the general court, and a majority of the senate, expressed for 
two consecutive years. The act referred to was passed by a majority of 
both branches of the general court, only at one session, for a single year. In no 
legal sense can it be said, that a provision which requires the consent of two 
thirds of a body may be regarded as immaterial and directory, and as a conse- 
quence that the consent of a majority is sufficient, much less can it be said, 
such provision has no force or meaning, and may be disregarded. It is due to 
the reader to say, that Mr. Rawle, a writer upon the constitution of the 
United States, a gentleman of great ability and purity, entertained different 
views. After the unsuccessful effort of Dorr, in Rhode Island, the legitimate 
government of the state made provision for the formation of a constitution, by 
delegates of the people, which was formed and adopted. The charter under 
which Rhode Island had previously acted, contained no provision similar to 
that contained in the constitution of Massachusetts, so that the cases are dis- 
similar. (See Luther v. Borden, 7 How. Rep. 1.) The administration of an 
oath may be regarded as a matter simply directory, et cetera, which are not 
applicable. Those who advocate and uphold the legality of the convention, 
whatever they may say, act upon an assumption, that a majority of the people, 
notwithstanding the constitution or any thing therein contained, may as indi- 
viduals, or by their representatives, at any and at every moment, as matter 
of inalienable right, control the system of government which they have estab- 
lished. This may be agreeable to the people, but it is revolutionary and disor- 
ganizing. With equal propriety it may be said, that a majority of the people 
may, in all cases in which they are not restrained by the constitution of the 
United States, direct that this or that part of the constitution, or this or that 
statute, shall receive a particular construction. 



168 THE SCIENCE OF GOVERNMENT. 

adopted ; the character of their charters and of their leg- 
islation ; they do not operate to enlarge, diminish, or 
destroy the express provisions contained in the instru- 
ments to which they are prefixed. The preamble to the 
constitution of the commonwealth of Massachusetts says, 
u the body politic is formed by a voluntary association of 
individuals ; it is a social compact, by which the whole 
people covenants with each citizen, and each citizen with 
the whole people, that all shall be governed by certain 
laws for the common good. It is the duty of the people, 
therefore, in framing a constitution of government, to 
provide for an equitable mode of making laws, as well as 
for an impartial interpretation and a faithful execution of 
them ; that every man may at all times find his security 
in them." This preamble is followed by a declaration of 
the rights of the inhabitants of the commonwealth, and 
constitutes a part of the constitution. These rights, 
except so far as they may be controlled by express terms, 
or by necessary intendment from other parts of the 
instrument, cannot be successfully invaded or denied by 
the legislative department. They exhibit an advanced 
state of civilization, and cannot be examined without 
admiration, without producing a conviction in the mind 
of every intelligent person, that man has capacity ade- 
quate to perceive and to pursue the purpose of his creation. 
All men, in the language of the instrument to which I 
have referred, have the right of enjoying and defending 
their lives and liberties, of acquiring, possessing, and 
protecting property. Keligious freedom is secured to 
every citizen, his religious profession and sentiments are 
free from restraint, provided they are not made so as to 
disturb the public peace, or interfere with the profession 
or sentiments of others. No man, nor corporation, or 
association of men have any title to obtain advantage, or 
particular and exclusive privileges, distinct from those of 



THE SCIENCE OF GOVERNMENT. 169 

the community. Every individual of the society has a 
right to be protected by it in the enjoyment of his life, 
liberty, and property, according to standing laws; is entitled 
to remedy, by recourse to the laivs, for all wrongs or injuries 
which he may receive in his person, property, or charac- 
ter. No person shall be held to answer for any crime or 
offence until the same is fully and plainly, substantially 
and formally described, shall not be compelled to accuse 
or furnish evidence against himself, shall have a right to 
produce all evidence favorable to himself, and to meet 
the witnesses against him face to face. The trial by jury, 
which is the great bulwark of liberty, (except in some few 
cases,) shall be preserved. The liberty of the press is 
considered essential to the security of freedom in a state, 
and ought not, therefore, to be restricted. The laws, or 
the execution thereof, cannot be suspended, except under 
extraordinary and pressing cases of necessity. Provision 
is made for an impartial interpretation and administration 
of law, to the end that the rights of every individual, his 
life, liberty, property, and character may be preserved. 
The legislative department shall never exercise the ex- 
ecutive and judicial powers, or either of them; the 
executive shall never exercise the legislative and judicial 
powers, or either of them ; the judicial shall never exer- 
cise the legislative and executive powers, or either of 
them ; so that the government shall be a government of 
laws, and not of men. These principles constitute sub- 
stantially the foundation of every state government. 
The legislative department controls and regulates, so far 
as it may, without violation or subversion of the princi- 
ples to which I have referred, rights of property, the 
mode of its acquisition, enjoyment, and disposition, the 
rights of persons, including life, liberty, character, and 
contracts ; and generally has the supervision of the con- 
duct, morals and manners and relations of the people 

22 



170 THE SCIENCE OF GOVERNMENT. 

with each other, so far as such supervision is essential to 
the peace, quiet, and advancement of the community as 
a society. It should always be borne in mind, that free- 
dom does not consist in the unlimited power of every 
person to act in accordance with his individual will or 
caprice. The liberty, the freedom which is vouchsafed 
by our institutions, is defined and regulated by law. 
This liberty can be sustained only by an unwavering ad- 
herence to law as it is, and shall be declared and ex- 
pounded by those appointed to declare and expound it. 
The legislative department of this commonwealth is 
composed of two branches, the senate and house of rep- 
resentatives, upon whose action the governor has a quali- 
fied veto. After the exercise of the veto power has been 
had upon any bill, or resolve, the reasons of such veto 
are considered, and if two thirds of both branches of the 
legislative department adhere to the bill or resolve, it 
becomes and has the force and effect of a law, notwith- 
standing the executive dissent and disapproval. The leg- 
islative department of Massachusetts has full power and 
authority to erect and constitute courts of record, or 
other courts, to be held in the name of the commonwealth, 
for the hearing, trying, and determining of all manner of 
crimes, offences, pleas, processes, actions, matters, causes, 
and things whatsoever, arising or happening within the 
commonwealth, or between, or concerning persons inhabit- 
ing or residing or brought within the same, whether the 
same be civil or criminal, and whether the said pleas be 
real, personal, or mixed ; which tribunals are invested with 
all power and authority which may be required to exe- 
cute and carry into effect the trusts reposed in them. 
And further, the said department has full power and 
authority from time to time to make, ordain, and estab- 
lish all manner of wholesome and reasonable orders, laws, 
statutes, and ordinances, directions and instructions, either 



THE SCIENCE OF GOVERNMENT. 171 

with penalties or without ; so as the same be not repug- 
nant to the constitution, as it shall judge for the good 
and welfare of the commonwealth, and for the govern- 
ment and ordering thereof, and of the subjects of the 
same, and for the necessary support and defence of the 
government thereof. 

This department has authority to prescribe the tenure 
of office, except so far as the constitution has designated 
the same • to impose all reasonable taxes and duties. Not- 
withstanding the general terms used in relation to the 
legislative department, its power is restrained and limited, 
so far as its exercise is incompatible or inconsistent with 
the powers and duties of the federal government. Its 
power is also restrained and limited by the bill or decla- 
ration of rights, contained in the constitution of the state, 
in some particulars. Private property cannot be taken 
for the public use, except upon compensation to the citi- 
zen whose property may be taken. All taxes are to be 
established and levied upon the consent of the people, or 
their representatives in the legislature. The people have 
a right, in an orderly and peaceable manner, to consult 
upon the common good, give instructions to their repre- 
sentatives, and to request of the legislative body by the 
way of addresses, petitions, or remonstrances, redress of 
the wrongs done them, and of the grievances they suffer. 
Laws made to punish for actions done before the exist- 
ence of such laws, are regarded as unjust, oppressive, and 
inconsistent with the fundamental principles of a free 
government. The constitution of Massachusetts has 
made ample provision for the education of the people, 
and for the advancement of learning, by recognizing the 
university at Cambridge, and by providing for other in- 
stitutions. The language of the constitution upon this 
subject, is full and explicit. It says, "wisdom and knowl- 
edge, as well as virtue, diffused generally among the body 



172 THE SCIENCE OF GOVEKNMENT. 

of the people, being necessary for the preservation of 
their rights and liberties ; and as these depend on spread- 
ing the opportunities and advantages of education in the 
various parts of the country and among the different 
orders of the people, it shall be the duty of legislatures 
and magistrates, in all future periods of this common- 
wealth, to cherish the interests of literature and the sci- 
ences, and all seminaries of them, especially the univer- 
sity at Cambridge, public schools and grammar schools in 
the towns; to encourage private societies and public in- 
stitutions, rewards and immunities for the promotion of 
agriculture, arts, sciences, commerce, trades, manufactures, 
and a natural history of the country ; to countenance 
and inculcate the principles of humanity and general 
benevolence, public and private charity, industry and 
frugality, honesty and punctuality in their dealings ; sin- 
cerity, good humor, and all social affections and generous 
sentiments among the people." 

Several times it has been stated, all our institutions, 
political and social, are founded upon an assumption that 
an intelligent and well educated people are competent to 
establish certain organic or fundamental charters or con- 
stitutions of government, and, through the instrumenta- 
lity of these charters or constitutions, are competent to 
govern themselves. The constitution to which reference 
has been made, in the clause recited, has made ample pro- 
vision to enable the people to attain the status or condi- 
tion required ; has furnished them an opportunity of ob- 
taining the education and intelligence which our theory 
of government demands. In this respect, they are not 
left to their individual exertions ; but the public authority, 
at the expense of the commonwealth, has provided for 
the reasonable education of all the inhabitants, without 
reference to any supposed rank or fortunate condition, 
which may result from any casual or other circumstance, 



THE SCIENCE OF GOVERNMENT. 173 

beyond the control of government. The children of the 
poor and of the rich, are alike provided with the means 
of instruction. The children of aliens and aliens born, 
are allowed the benefit of the public schools. The legis- 
lature of Massachusetts has even provided by law for 
the attendance by compulsion, if need be, of those who 
are unwilling to enjoy, or are unmindful of, the benefits 
extended. The legislative department of the common- 
wealth to which reference has been made, is, in the gen- 
eral powers conferred, similar to the legislative depart- 
ment of the several states which compose the union. 
Some of the states have not, in their constitutions, adopted 
terms or provisions so full and explicit upon the subject 
of schools and education. In some of the states, instruc- 
tion is not provided at the public cost. These states, 
however, are not without the means of instruction, and 
evidence is constantly furnished of efforts made in the 
several states to establish public schools ; and it cannot 
be doubted, that they will be maintained ultimately 
throughout the country. Efforts and associations have 
been made and entered into in the New England states, and 
probably in others, to send teachers to the states in the 
w T est, so that those who commence to cultivate and bring 
forward new states may be countenanced and encouraged 
by those whose pecuniary ability may be greater. This 
disposition to aid and encourage each other is not local, 
or confined to any one state, or to any number of states, 
but may be and is discovered in various ways in every 
state of the union. In truth, the prosperity and advance- 
ment of every state is a matter of pride and gratification 
to every other state. 

The people of the several states are not only progres- 
sive in enterprise, in mind, and in manners, but they are 
somewhat migratory. Every new state numbers among 
its inhabitants many active, enterprising citizens, young 



174 THE SCIENCE OF GOVERNMENT. 

and old, from some one of the original thirteen states. 
These persons carry with them their education, and it 
becomes capital for others so well as for themselves. 
The provisions contained in our system for the education 
of the people cannot be appreciated beyond their merit, 
or be guarded with too much care. The most absolute 
and despotic government of the world, by the cultivation 
and education of its people, would, in a few years, find its 
power diminished ; such diminution would continue until 
the rights of the people should be regarded and recog- 
nized and exhibited in the establishment of mild and 
salutary institutions of government and of society, inas- 
much as the power of a well disciplined intellect is more 
certain and extensive in its exertions and influence, than 
mere physical force can be. The legislative department 
of the state sovereignty extends to all matters of a local 
character, to all the subjects which appertain to the busi- 
ness of life, and concern the general welfare of the body 
politic. The power so conferred has been executed in 
conformity with the enlightened principles which gave it 
existence, as may readily be seen by an examination of 
the statutes of any one of the several states. The owner- 
ship of land, the title to the soil, has always been re- 
garded as conferring upon its possessor an influence 
and importance which is not derived from other pro- 
perty. In many countries its acquisition is difficult, and 
few only are enabled to obtain a fee-simple or perfect 
title thereto. In England, the proprietors of the soil con- 
stitute a small proportion of population, compared with 
the number of its inhabitants. Many restrictions are 
imposed and exist, which do not exist in this country. 
The policy of Great Britain, in relation to the ownership 
of its soil, has been the subject of complaint from many 
of her citizens ; it has also furnished an occasion for much 
comment by the press and by individuals of this country. 



THE SCIENCE OF GOVERNMENT. 175 

If these restrictions were removed, the effect would be 
troublesome and dangerous to the government. It can- 
not, therefore, be regarded as strange and unaccountable, 
that they should be adhered to with firmness, as they 
have been and are, to a great , extent, by those imme- 
diately connected with the government and its ad- 
ministration. These restrictions are not so numerous 
or burdensome at the present time as they formerly 
were. The popular voice and the popular will, as it in- 
creases in intelligence, must be heard in and under every 
form of government. The great facility which is afforded 
to every American citizen to become an owner of land, 
of the homestead upon and in which he lives, and which 
is cultivated and improved by his labor and by the labor 
of his children, is an important barrier against the oppres- 
sion of government and of those in authority. It is also 
favorable to the stability and existence of the government. 
It gives to the occupant self-respect, and he goes forth to 
make the wilderness blossom like the rose, because the 
fruit and product of his labor is his own. The condition 
and extent of civilization, of liberty enjoyed by any peo- 
ple, may be ascertained with an almost unerring certainty 
by learning its law applicable to the occupation and dis- 
position of its soil. An eminent jurist has said, there 
is nothing which so generally strikes the imagination 
and engages the affections of mankind as the right of pro- 
perty, or that sole and despotic dominion which one man 
claims and exercises over the external things of the 
world, in total exclusion of the right of any other indi- 
vidual in the universe. He might with truth have added, 
that this sentiment, or love of dominion over property, is 
more applicable to the soil, to immovable property, than 
to any other class. The legislation of different countries, 
in relation to land and its title, is an interesting study, and 
may be examined with profit by those who are disposed 



176 THE SCIENCE OF GOVERNMENT. 

to learn the progress of social institutions ; the result of 
such examination will satisfy those who make it, that the 
freedom of the people is dependent, to a great extent, 
upon their ability or inability to become freeholders ; the 
succession to landed estates in Europe has been generally 
regulated by the custom of primogeniture. During the 
violence and confusion of the middle ages, land was the 
only species of property which had any thing like reason- 
able security ; and, deficient as it was, that security could 
be enjoyed only by the possessors of large estates, who 
could arm and bring together a considerable number of 
vassals and retainers to support and defend their rights. 
It was plainly, therefore, for the interest of the landed 
proprietors to prevent their estates from being divided 
into small portions, so that they might be transmitted 
entire to their successors. It was customary in England, 
from an early period of its history, to settle estates 
upon individuals under certain conditions and stipula- 
tions. Modes, however, were adopted by lawyers and 
by judges of eluding and evading these conditions. 
To prevent and obviate such evasions, a statute was 
passed in the time of Edward II., by which it was 
provided that estates should be holden in conformity to 
and in subjection to the terms and conditions of the 
donor. This statute established a system of perpetual 
entail, which was established by the greater barons to 
prevent not only the alienation, but the forfeiture of their 
estates for political offences. This statute produced many 
inconveniences and evils : children grew disobedient when 
they knew they could not be set aside ; farmers were de- 
prived of their leases made by tenants in tail ; creditors 
were defrauded of the sums or debts due to them ; trea- 
sons were encouraged, as estates tail were not liable to 
forfeiture longer than for the tenant's life. The statute 
of Edward was regarded, for these reasons, as the source 



THE SCIENCE OF GOVERNMENT. 177 

and cause of contentions and mischiefs unknown to the 
common law before its passage. 

The security which this statute afforded to the nobility 
operated against its repeal for many years. Its effect, 
however, was avoided to some extent by indirect means, 
by what was familiarly designated a pious fraud of the 
lawyers. This fraud consisted in the invention of a ficti- 
tious suit, known as a common recovery, by the instru- 
mentality of which a tenant in tail was enabled, by the 
aid of the courts, to bar the entail and change the estate 
into a fee-simple. This mode of proceeding was in com- 
mon use in many of the states, until within a few years ; 
and many titles now rest upon the efficacy of this inven- 
tion, or fraud of the lawyers. 

Estates in tail are common in Scotland, although under 
restrictions peculiar to that country, not known to the 
English law, which restrictions had an influence to render 
them less objectionable than they otherwise would have 
been. In this commonwealth, and generally in the seve- 
ral states of the union, conveyances of lands, or of any 
interest or estate therein, may be made by deed executed 
by any person having authority to convey the same, or 
by his attorney, and acknowledged and recorded, without 
any other act or ceremony. A husband and wife may by 
their joint deed convey the real estate of the wife. The 
husband cannot, however, by any conveyance to which 
the wife is not a party, deprive her of her right of dower 
in his estate, which right in almost every state extends 
to all land susceptible of cultivation, of which the hus- 
band, during the continuance of the marriage, may have 
seisin and title, although such seisin may have been, or 
be, of short duration. In one state, at least, this right of 
dower does not attach, or extend to any estate of the 
husband, except such as he may be entitled to at the time 
of his decease, thus enabling the husband, by a sale in 

23 



178 THE SCIENCE OF GOVERNMENT. 

his lifetime, to bar this equitable and valuable right. 
Any person actually seized of land as tenant in tail may 
convey the same in fee-simple, by a deed in common 
form, in like manner as if he were seized thereof in fee- 
simple, and such conveyance shall bar the estate tail and 
all remainders and reversions expectant thereon. Any 
person seized of real estate, including, in some of the 
states, married women, under certain limitations designed 
for their protection, may dispose of the same by will. 
Lands are also subject to the payment of the debts of 
those who may be the holders and owners thereof. It 
has been holden in a neighboring state, that a person 
who has a life estate in land, with an unlimited power of 
disposition to take effect at his decease, who exercises the 
power so conferred, and attempts to dispose of it as 
though it were his own, thereby subjects it to the pay- 
ment of his debts in preference to the objects of his 
bounty. In this country, land cannot be kept in the same 
family or line of descent, for any great length of time, 
so as to be beyond the power of alienation. These few 
general incidents of land and its ownership have pro- 
duced an entire change in and from the condition and 
state of land which existed at the settlement of this 
country, and which to some extent exists in England at 
the present time. At the adoption of our union, in 
almost every state the owner of land was allowed to en- 
tail it, to keep it in his family for generations, and there- 
by restrain the enterprise of those who were its posses- 
sors, and embarrass and retard the general advancement 
of the community. No legislation or legal principle has 
done more, or even so much for the political and social 
improvement of the people, as has been done by those 
provisions which authorize the tenant or holder of an 
estate tail to dispose of the same by a simple deed, and 
which subject such estate to the payment of the debts of 



THE SCIENCE OF GOVERNMENT. 179 

the holder, and which restrain the creation of estates in 
a class or line of persons to the exclusion of others, over 
which estate the holder for the time being has no power 
of alienation, or permanent disposition. The accumula- 
tion of estates in families is injurious often to the posses- 
sors ; is disadvantageous to the public welfare, inconsistent 
and incompatible with free and progressive social institu- 
tions. The difference of opinion upon this subject, as 
exhibited in American legislation and in the writings and 
opinions of those not conversant with our system, is re- 
markable. Some half century since, an intelligent and 
practical farmer in Scotland was requested to give his 
opinion, whether it would be advantageous to the agri- 
cultural interest of his country, were the tenants, espe- 
cially those in the best cultivated districts, vested with 
the power of sub-letting their farms ; and, supposing the 
tenants had such power, and the power of dividing their 
farms, and of devising them by will, what would be the 
probable influence of such power on the agriculture of 
the country and the condition of the tenants. 

At the time these questions were proposed, it was the 
custom of landholders and owners to make leases of large 
quantities of land, for periods of nineteen and of twenty- 
one years, the tenant having no power of leasing or de- 
vising his estate. The answer, honestly given, no doubt, 
was adverse to the theory which dictated the questions. 
He says, "the practice of letting land on leases of nine- 
teen years, having been general for nearly a century, and 
the power of sub-letting having been very rarely con- 
ceded, the lands have naturally fallen into the occupancy 
of that class of persons, who engage in the business of 
agriculture with the full purpose of devoting their lives 
to it. Much of the superiority of Scotch agriculture is 
ascribed to the steady, enterprising character of the cul- 
tivators. And the system of letting land upon leases for 



180 THE SCIENCE 0¥ GOVERNMENT. 

a definite number of years, with the prohibition of as- 
signing or sub-letting, has contributed largely to the 
formation of that character and enterprise. A man en- 
tering upon a lease for nineteen or twenty-one years, with 
the knowledge that it is not in his power to transfer it to 
another, and that his interest in the farm will terminate 
at the expiration of the stipulated period, is stimulated 
to a vigorous and early execution of the necessary im- 
provements, as he knows that the longer they are de- 
layed, the more will the profits derivable from them be 
diminished. To produce this effect, it is indispensable 
that the lessee or his heir at law should possess the farm 
during the continuance of the lease, and consequently 
that there should be no power to assign or sub-let. This 
individual supposed that the change suggested by the 
inquiries, would operate unfavorably upon the interests 
and upon the habits and character of the people. He 
spoke from his experience and observation. He was a 
stranger to the activity, enterprise, and self-respect of 
a people, free and unrestrained, except so far as restraint, 
from the organization of society, is essential to uphold it. 
He admitted the existence of a strong desire in a majori- 
ty of those, a single remove or two above the condition 
of laborers, to possess a piece of land ; that such desire 
had been unequivocally established by the experience of 
every " country, where facilities for its gratification had 
been afforded. He admitted that this desire was exceed- 
ingly powerful ; that every one wished to be indepen- 
dent ; that those who had attained the possession of a 
few acres of land, and of a house, had attained, in their 
own estimation, independence, or at least had made a 
great advance on the road to independence. The opin- 
ions and experience of the individual to which refer- 
ence has been made, are not in unison or in harmon}^ 
with the experience of this country, or with our institu- 



THE SCIENCE OF GOVERNMENT. 181 

tions. They furnish a striking contrast between our sys- 
tem of legislation and of government, and that of the 
country, comparatively free as it is, in which such opin- 
ions were the legitimate result of its internal institu- 
tions. The baneful influences of long leases have been 
made manifest from the turmoils and outrages which they 
have produced in a neighbouring state, and have been 
felt in some of the New England states, from glebe lands, 
which are not altogether extinct. In relation to the 
capacity of persons to make wills, changes have constant- 
ly been in progress. The power of devise was originally 
extended only to a portion of the estate of the devisor, 
or to estates derived by the devisor in a particular mode. 
In this country, few restrictions exist ; the formalities re- 
quired are not numerous, or difficult of attainment. The 
law applicable to the possession, the acquisition, and dis- 
position of land, to the making of wills and testamentary 
papers, has been constantly progressive in its liberality 
and simplicity ; and the result is, that an adequate knowl- 
edge of these subjects may be acquired in a few years, 
which formerly could not be attained except by the devo- 
tion of a life to its acquisition and attainment. These 
subjects are exclusively within the province of state legis- 
lation and of state sovereignty ; the federal jurisdiction 
does not extend to them, but each state, according to its 
habits, its position, and its pursuits, adopts regulations 
agreeable to its own sense of right. These regulations, 
although not the same precisely in the different states, 
are substantially the same, except in one or two of the 
states, in which the civil law, or the law of France, or of 
Spain, which are influenced and somewhat derived from 
the civil law, prevails so far as it may not be inconsistent 
with our political theory, or with the republican institu- 
tions which flow from our theory. 

Personal property is also subject to state sovereignty ; 



182 THE SCIENCE OF GOVERNMENT. 

its incidents are regulated by state law. Personal estate, 
in technical or legal language, has no locality. Its title is 
ascertained by the law of the country or state in which 
its owner has his domicil. A conveyance of personal estate, 
legal by the law of the place of which the owner is a 
citizen, is ordinarily regarded in every other country as 
a legal transfer ; this is" so as a matter of comity and as 
a general legal principle, between countries not connected 
with each other, as part of the same political system. It 
is peculiarly so, between the several states of this coun- 
try. The mode or form of transfer of personal estate 
from one person to another, is not ordinarily regulated 
by arbitrary or fixed rules. It may be by delivery, with 
intent to pass the title. It may be by a bargain and 
sale, without delivery, or by exchange or barter, a method 
of disposition quite common in new countries, or in 
the early stages of society. In some instances, the title 
passes between the parties negotiating, when it does not 
pass against other persons who may have the power to 
acquire an interest. A creditor of the owner of personal 
estate, may obtain a right therein, against a party who 
as purchaser may have a vested title to it against the 
former owner. Some personal estate, such as shares in 
the capital stock of banking, manufacturing, and other 
corporations, must be transferred npon the books of the 
corporation in order to confer a legal title, although the 
beneficial or equitable title may be transferred without 
such entry upon the books of the corporation. The 
ownership of vessels is ordinarily transferred by written 
bill of sale, and must be so transferred, to confer ujoon 
the vessel the character of an American vessel, and the 
protection and immunities of a national character. The 
title between parties may be transferred, in this country, 
in a vessel without* writing. The most important statute 
regulation, in relation to the transfer of property, is denom- 



THE SCIENCE OF GOVERNMENT. 183 

mated the statute of frauds. This statute provides, " no 
contract for the sale of goods, wares, or merchandise, for 
the price of fifty dollars or more, shall be good or valid, 
unless the purchaser shall accept and receive part of the 
goods so sold, or shall give something in earnest to bind 
the bargain, or in part payment ; or unless some note or 
memorandum in writing, of the bargain be made and signed 
by the party to be charged thereby, or by 'some person 
thereunto by him lawfully authorized." We received 
the principles of this statute from England, and it is evi- 
dence of an advanced state of society. The policy of 
the provision is wholesome, inasmuch as the memory of 
witnesses is not always a safe guide. 

The object of the law-maker is to prevent fraud, to 
prevent litigation. It proceeds upon a very well estab- 
lished fact, applicable to all the conditions of life, that 
evil can be prevented much easier than it can be cured, 
or its effects avoided after its occurrence. The character 
of a people is exhibited in its legislation upon property. 
If the statutes upon this subject are few and simple and 
easily understood, it may be and should be inferred that 
the general integrity of the people is undoubted. Nu- 
merous and complex statutes result from a disposition in 
the people to avoid and resist a performance of their 
duties. Examined by this standard, the legislation of the 
several American states must receive the commendation 
of those who analyze it, by those who study cause and 
effect. 

Contracts constitute another important matter of state 
legislation. The persons who may enter into contracts, 
the form and subject-matter of contracts, are all regulated 
by state authority. Upon this subject, great freedom is 
allowed. The citizens in this particular, with some few 
exceptions, determine, unrestrained by legal enactments, 
when and in what undertakings they will embark. Some 



184 THE SCIENCE OF GOVERNMENT. 

contracts cannot be upheld, unless in writing. An indi- 
vidual who, without consideration, and as an act of friend- 
ship, makes a verbal promise to pay the debt, or perform 
the obligation of his friend or neighbor, is not legally 
bound to perform his promise. A moralist, who looks at 
the mere matter of right and wrong in an abstract view, 
or who may regard only some individual case, may con- 
sider this as unwise, or as evidence of a defect in the 
science, or in the administration, of law. The provision 
which requires such promise to be in writing to render it 
legally effectual and availing, has a substantial foundation 
in the wisdom and experience of ages, and cannot be 
regarded as a reproach to the science of jurisprudence. 
Individuals may use terms broader than they intend, 
when speaking of their willingness to aid another having 
no inducement or purpose of their own, other than 
friendship, to accomplish. The terms used may be under- 
stood by those to whom they may be addressed, or by 
those who may hear them, in a sense broader than was 
intended or designed by the party using them. Many 
circumstances, derived from the experience of business 
men, might be adduced to show that the safety of indi- 
viduals and of the community as a whole, is promoted 
by requiring such contracts to be evidenced by a written 
memorandum ; in this way fraud and mistake are pre- 
vented. Other contracts of a similar character, and from 
similar principles, are required to be in writing ; but a 
large proportion of all contracts may be established by 
any satisfactory proof which the parties can adduce, 
resorting in all cases to the best or most natural proof of 
which the subject may be susceptible. Contracts in rela- 
tion to land, as a general proposition, must be in writing. 
A party who is competent to make a contract by his own 
will, or at pleasure, may make it through the instrumen- 
tality of his agent, servant, or attorney. Contracts should 



THE SCIENCE OF GOVERNMENT. 185 

have a consideration, either good or valuable, as a mere 
gratuity or voluntary undertaking is not ordinarily the 
subject of legal enforcement ; the consideration must be 
legal, otherwise it is unavailing as the foundation of a 
contract. Contracts, legal by the law of the country in 
which made, are regarded as legal and obligatory in 
every other country. To this rule there are exceptions. 
Contracts perfectly legal in the state or country in which 
made, will not be enforced in another state, where such 
enforcement must or may be inconsistent or incompatible 
with the institutions of the country in which they are 
sought to be set up. This arises from the necessity of 
self-preservation and self-respect which is imposed upon 
every community. Some contracts are regulated by law 
for the purpose of protecting parties thereto from their 
own weakness, or from the pressure of their condition ; 
laws upon the subject of usury are of this description. 
Money is the standard by which, in a commercial or 
advanced state of society, all other articles are measured 
and their value determined. The business of society 
cannot well be conducted without its possession and use ; 
consequently men may be induced, through many con- 
trolling influences, to pay or stipulate to pay for the loan 
of money more than they can afford to pay, with profit 
to themselves. To guard against such improvident con- 
duct, the law-maker intervenes and avoids the contract, 
or imposes penalties upon those who stipulate to receive 
more than the legal use or rate prescribed by law. Many 
writers and many individuals have regarded the policy 
of such legislation as unsound, and as an unnecessary 
interference with private contracts ; that money is merely 
an article of trade, and is worth precisely so much as can 
be obtained in promise, or other property therefor. If 
the propriety of usury laws is to be determined by the 
course of legislation which has been had upon the subject 

24 



186 THE SCIENCE OF GOVERNMENT. 

in various countries, they must be regarded as wholesome 
and beneficial in their influence. These statutes in the 
several states are not the same ; in some it has been the 
policy of the law to avoid entirely the force and effect of 
a contract which is usurious ; in others, to impose a pen- 
alty in the way of deduction from the sum loaned. The 
last course has, within a few years past, become the most 
usual method adopted. All these matters are the subject 
of state sovereignty, with which the federal government 
has no concern. 

The regulation of internal trade is a matter of public 
concernment, and is regulated by state authority. This 
power is not and cannot rightfully be exercised so as to 
prohibit the citizen from engaging in any wholesome 
business or occupation which may be congenial to his 
inclination, or conducive, in his own judgment, to his in- 
dividual advancement and welfare. The public interfere 
only for the protection of the public, and only so far as 
the safety and interests of the body politic may require. 
Auctioneers and brokers are required to conform to cer- 
tain rules, and to have a license ; pawnbrokers and many 
other occupations are obliged to submit to certain restric- 
tions, designed to maintain their integrity and the rights 
of the community. The care and disposition of many 
kinds of property, which are dangerous in themselves or 
susceptible of evil, is intrusted to the legislative depart- 
ment of every government, and when exercised within 
constitutional and judicious limits, such care and disposi- 
tion are productive of individual and of public good. 
This power intrenches itself closely upon individual 
right, and must produce evil and disquiet in a com- 
munity when improperly extended. In relation to 
legislation of this description, the American people are 
sensitive, and do not submit without impatience, except 
in those cases where public opinion is very decisive and 



THE SCIENCE OF GOVERNMENT. 187 

somewhat uniform upon its fitness. In a free country, 
law must coincide with and follow the habits of the peo- 
ple, or it will produce an uneasy and restless state of 
mind, from which no good can come. Law, in a free 
country, judiciously established, can and will quietly 
mould, chasten, and regulate the habits of the people. 
It cannot create virtue or intelligence. 

The preservation of the public health is intrusted to 
the several states. Boards of health are established by 
law in the several towns, which are authorized to adopt, 
within prescribed limits, rules and regulations for the 
preservation of health. These boards exercise an im- 
portant influence upon the moral and physical condition 
of the people. The proceedings and measures of these 
boards are of a quiet, unobtrusive character ; [are of con- 
stant and daily operation, insomuch that the result pro- 
duced is apparently derived from the habits and inclina- 
tion of the people, and not from the force of legal enact- 
ments. A stranger to our institutions, taking only a 
general survey of the people as they may be seen in 
their ordinary pursuits, each following his own inclina- 
tion in the selection of his occupation, would incline to 
suppose that the community is governed by its own will, 
without coercion or restraint imposed by law. This, to a 
great extent, is undoubtedly true, and must be so in a 
government established and substantially controlled by 
the popular will. Inspection laws are of the same cha- 
racter, and are matters of state legislation. Many of the 
articles which are of ordinary and daily consumption, be- 
fore offered for sale, must be examined by a public 
officer, and their character and quality designated. In 
this respect, the public are protected against their inca- 
pacity, their carelessness or want of attention, and against 
fraud and imposition, which otherwise might be practised 
against them. Quarantine laws are established, which 



188 THE SCIENCE OF GOVERNMENT. 

apply to the citizens of the state in which they are en- 
acted, and also to the people and to vessels belonging to 
other states and to foreign nations, which may come 
within the limits or jurisdiction of state authority. High- 
ways and bridges are established by towns and by 
counties, for public convenience and at public charge; 
they are also established by and under authority 
granted by the state, by individuals, and by corpora- 
tions, in which cases the proprietors are bound to keep 
them open and in repair, accessible to the people. As 
a compensation, the proprietors are authorized to assess 
or charge upon those who use them a toll or tax, which 
is regulated by public authority. Another important 
and extensive power, exercised under and by state sove- 
reignty, is that of its internal police, which embraces the 
settlement and support of paupers, the regulation of 
licensed houses, the care of lunatics, the observance of 
the Lord's day, the prosecution and punishment of im- 
morality, the law of the road, the preservation of useful 
animals. 

The effect of this j30wer is constant. It operates upon 
the most important interests of society, and its several 
relations. The provision made for the support of paupers, 
in many of the states of the union, is extensive, and has 
been and is the cause of large expenditures of the pub- 
lic money. The humanity of the people in this particu- 
lar, is exhibited in a favorable aspect. The benefits of 
the system have been extended to all persons who may 
require assistance, without reference to their origin or 
citizenship ; and they have, no doubt, in many instances, 
fallen upon those not entitled. The propriety of our sys- 
tem, in relation to paupers, has been the subject of dis- 
cussion by writers upon political economy, without pro- 
ducing any certain and reliable judgment as to its fitness, 
compared with other modes of relief. It is, in fact, one 



THE SCIENCE OF GOVERNMENT. 189 

of the most embarrassing and difficult subjects which can 
engage the attention of the law-maker, or the thoughts 
of the humane and benevolent. If any error has been 
made by the American people, it has been on the side of 
liberality. That some provision must be made upon this 
subject by the public, cannot with propriety be denied. 
It is due to the public safety and preservation, to the 
peace and quiet of the community no less than to those 
sentiments of kindness and sympathy which should ever 
be extended to those whose misfortunes are above and 
beyond their control. The powers to which reference 
has been made, health, inspection, and police regulations, 
have always been conceded to state authority, even by 
those disposed to yield to the federal government the 
most enlarged power which it can exercise under its con- 
stitution. The language of the supreme court of the 
United States has been clear, uniform, and decisive. A 
state has the same undeniable and unlimited jurisdiction 
over all persons and things within its territorial limits as 
any foreign nation, when that jurisdiction is not surren- 
dered or restrained by the constitution of the United 
States. It is not only the right, but the bounden duty 
of a state to advance the safety, happiness, and pros- 
perity of its people, and to provide for its general wel- 
fare, by any and every act of legislation which it may 
deem to be conducive to these ends, in all cases where 
the power over the particular subject or the manner of 
its exercise are not surrendered or restrained by the con- 
stitution of the United States. All those powers which 
relate to merely municipal legislation, or which may 
more proporly be called internal police, are not surren- 
dered or restrained ; and consequently, in relation to 
these, the authority of a state is complete, unqualified, 
and exclusive. In some instances it may be, and un- 
doubtedly is, difficult to define with certainty and perfect 



190 THE SCIENCE OF GOVERNMENT. 

accuracy the point at which one jurisdiction commences 
and the other ends. This can, however, be done with 
sufficient precision and accuracy to prevent collision, 
so long as the different sovereignties manifest a spirit of 
moderation, and a determination not to exercise or en- 
large any supposed doubtful power. 

The supreme court of the United States, on one occa- 
sion, in speaking of the police power of a state, said : If 
the court were to attempt a definition of it, they would 
say that every law came within the description of a reg- 
ulation of police which concerned the welfare of the 
.whole people of a state, or any individual within it, 
whether it related to their rights or their duties ; whether 
it respected them as men or as citizens of the state, in 
their public or private relations; whether it related to 
the rights of persons, or of property of the whole people 
of a state, or of any. individual within it, and whose ope- 
ration was within the territorial limits of the state, and 
upon the persons and things within its jurisdiction. This 
definition is undoubtedly sufficient as a practical guide, 
in the determination of any question which may arise. 
Definitions, however, in general terms are unsafe, and 
liable to mislead, whenever their application to an indi- 
vidual case, or particular state of facts, is attempted. So 
far as I have been able to analyze the question, it seems 
that the state sovereignty extends to all things, to all per- 
sons, all contracts within its territorial limits which do 
not appertain to the foreign relations of the United 
States, or to the relation which subsists between the seve- 
ral states as independent sovereignties, or to the private 
rights which the constitution of the United States con- 
cedes to the citizens of a state, to be enjoyed by them in 
another, in the exercise of which sovereignty the obliga- 
tion of a contract shall not be invaded or impaired. 



LECTURE VII 



THE STATE GOVERNMENT. — THE PURPOSE AND CHARACTER OF ITS LEGISLATION.— 
WITHIN CERTAIN LDHTS IT IS SUPREME, AND EXCLUSIYE OP PEDERAL CONTROL 
— RESTRICTIONS DIPOSED THEREUPON. 



Several of the subjects embraced within state sove- 
reignty, which are controlled by its legislation, have been 
discussed. Some of the most important remain to be 
examined in general terms, sufficiently definite, however, 
to exhibit their character, purpose, and practical opera- 
tion. The authority or power to establish corporations, 
for municipal and for business purposes, appertains to the 
state sovereignty, so far as it may be exercised for internal 
matters, and it has been exercised in the several states 
with great liberality, and with more frequency than the 
public interests have required. In many of the states, 
the sovereign power is exercised by the creation of muni- 
cipal corporations, through the instrumentality of which 
some of the purposes of government are executed ; coun- 
ties, towns, and cities, belong to this class of corporations, 
and exercise such authority as the legislative department 
of the state, from time to time, may confer. The purpose 
to be accomplished by them is of a public nature, and 
their doings are upheld and sustained, whenever they 
may be without violating some fundamental principle, or 
provision of the constitution or some statute applicable 



192 THE SCIENCE OF GOVERNMENT. 

to them. Every intendment in favor of these corpora- 
tions and of the acts of their corporate officers is made, 
which with propriety can be, upon the broad principle, 
applicable to our system and to every portion of it, that 
the government and the trust confided thereto, must be 
sustained. These corporations are subject to the control 
of the judiciary, and they may be restrained, and their 
officers may be enjoined from going beyond their power 
or rightful jurisdiction. They may also be required to 
perform the trusts and duties with which they are or may 
be intrusted. 

The officers of counties, towns, and cities, are generally 
elected by the people, and their appropriate duties, in 
general terms, are prescribed by law, so that their discre- 
tion is somewhat controlled. This subdivision of autho- 
rity is convenient, and well adapted, to the speedy and 
careful management and protection of the public inter- 
ests. In a political view, and as a branch of our politi- 
cal economy, it is of the utmost importance. The divi- 
sion of power, the establishment of institutions, by and 
through which all the purposes of government are ac- 
complished, constitutes a prominent feature in the several 
state governments, and may be regarded as one of the 
safeguards of the people, and of their rights. The pub- 
lic business which concerns and appertains to the daily 
pursuits of the community, is performed by these muni- 
cipal corporations, so that the administration of the powers 
of government in these matters, is conducted and exercised 
by those whose immediate interests are operated upon. 
Every citizen, by his right of suffrage, by his personal 
opinion and influence, and by his eligibility to office, 
holds his personal security, to a great extent, in his own 
hands ; and if this is invaded, such invasion must result 
from his neglect of and inattention to his duty. As a 
general fact or position, it may be said, these corpora- 



THE SCIENCE OF GOVEKNMENT. 193 

tions confine their action within their corporate limits or 
power, although instances have occurred, in which they 
have transcended their appropriate sphere. Towns or 
municipalities under a city organization are more likely 
to exceed their jurisdiction, than are those which act 
under a different system. City officers, from habit, from 
association, and from the nature of their powers, are re- 
garded as of more importance and dignity than are plain 
common citizens, acting under the name of selectmen. 
The power of a city government, is undoubtedly more 
direct and efficient than is that of a town, which has no 
such organization. The chief executive officer of a city 
devotes a large proportion of every day to the duties of 
his station, and is more directly the object of observation 
and responsibility than is a selectman of a town. Many 
other officers devote a large proportion of their time to 
the public duties. The population of cities is usually 
greater than is that of a town. In the commonwealth of 
Massachusetts, it was formerly doubted whether the legis- 
lative department had power to establish city govern- 
ments. To obviate this supposed difficulty, the constitu- 
tion was amended, and the general court is now author- 
ized to establish city governments in any town which 
has at least twelve thousand inhabitants, provided the 
application for a charter, and its acceptance, shall be 
made by a majority of the inhabitants voting upon 
the question. The powers, privileges, and immunities 
granted, if not repugnant to the constitution, are such 
as the legislative department of the state may consider 
expedient, provided that all by-laws made by any city 
government shall be subject, at all times, to be annulled 
by the general court. This division of authority, as an 
element of political economy, is not without influence in 
another important aspect. It creates a large number of 
offices, all of which, although they are not equally fasci- 

25 



194 THE SCIENCE OF GOVEKNMENT. 

nating or desirable, or of equal pecuniary value, are 
readily and easily filled. The love of place, of power, is 
natural to the human mind ; it is as great under a repub- 
lican form of government as it is in any other. Arbi- 
trary power, or its unauthorized assumption, is more easi- 
ly resisted and controlled in a republican form of govern- 
ment, than it can be in a government whose source of 
power is not immediately derived from the people. So 
far as power can be safely divided, its authority diffused, 
and its execution intrusted to a large number of indivi- 
duals, it should be, inasmuch as thereby the entire peo- 
ple apparently constitute the government, as they do in 
fact, except so far as they have limited and controlled 
their right and capacity by constitutions, by charters, or 
by statutes. By this diffusion of authority, the distance 
and difference which otherwise might seem to exist be- 
tween those, who from time to time control the machinery 
of government, and those governed, is trifling and unim- 
portant. The capacity of towns, of cities, of counties, or 
other territorial divisions, as parts of a state sovereignty 
or government, to perform their duties, is understood 
and admitted at once, upon its suggestion or statement. 
No cause of conflict between them and the state sove- 
reignty can arise, because all these divisions have limited, 
subordinate, and prescribed trusts, and are subject, in their 
exercise and performance, to the direction of the state, 
carried into effect by its legislative, judicial, and execu- 
tive departments. The corporations to which I have re- 
ferred are of a public nature, and exclusively for public 
purposes. They have no power to embark in enterprises 
or business operations of a private character, however 
profitable or plausible they may seem to be, which are 
not essential to the existence or exercise of the legiti- 
mate purposes of government. Under state sovereignty, 
a large number of other corporations of a private nature, 



THE SCIENCE OF GOVERNMENT. 195 

for the profit and advantage of individuals, have been and 
may be established. They are designed to facilitate, to 
aid individual enterprise, and thereby subserve the gen- 
eral welfare and interests of society. The progress of 
society, of its institutions, the employment of capital, of 
labor, are advanced and carried forward by these corpora- 
tions. The wealth and importance of the community, as 
a whole, is undoubtedly enlarged by their operation. 
They are, however, dangerous implements, inasmuch as 
individual responsibility is frequently merged and lost in 
that of an intangible corporate existence. 

In the early legislation of free states, especially of 
those which are new and unimproved, acts of incorpora- 
tion are easily obtained. Efforts for individual gain are 
always importunate, and, when accompanied by glowing 
exhibitions of public advancement, generally succeed in 
obtaining the desired implements, by which it is sought 
to be attained. This is evident from the legislation of the 
several states, in relation to corporations created for pri- 
vate purposes. Restrictions, from time to time, are im- 
posed upon their action. Their charters may be taken 
away by the judiciary, and may be declared void upon a 
hearing, and satisfactory proof of any clear and material 
violation of their chartered rights or duties. In many in- 
stances, by express provision in the charters granted, the 
legislative department reserves to itself a right of repeal 
or rescission of the grant. In many of the states, it has 
recently become common to provide by general statutes, 
that corporations thereafter established, shall be subject 
to revision, alteration, amendment, or repeal, at the plea- 
sure of the department which created them. They are 
also made subject to examination by public agents or 
officers; are obliged to report to the public authority 
their condition and doings, and, under certain circum- 
stances, the stockholders or corporators are made person- 



196 THE SCIENCE OF GOVERNMENT. 

ally responsible for the obligations and acts of the corpo- 
rations of which they are members. As these associa- 
tions increase in number, as the facility of obtaining 
chartered rights is enlarged, the care of the law-maker, 
to prevent wrong and injury to the community, is in- 
creased. Notwithstanding all the restrictions which have 
been, or can be, imposed, it cannot be doubted or denied, 
that corporations are altogether too numerous. Many of 
the most common and ordinary business operations are 
carried on by the instrumentality of a charter or act of 
incorporation. The argument put forth generally in 
favor of an extension of the number of incorporations is, 
that they constitute monopolies ; that their extension 
has a tendency to prevent the inconveniences ordinarily 
resulting from a monopoly, inasmuch as twenty or fifty 
monopolies will embrace more individuals than can be 
included in a less number. It is also urged, that any per- 
son, or number of persons, has and have the same right 
to obtain the privileges and immunities of a charter as 
any other person or number of persons may have. This 
course of reasoning is specious, and has much of truth and 
soundness in its composition, but does not contain all the 
elements or principles applicable to the subject. Al- 
though corporations are for the personal benefit and 
emolument of the corporators, individual benefit is not 
the sole motive or cause of their creation. The theory 
of the government is, that thereby the public interest and 
welfare may be extended and promoted in a manner in 
which it could not otherwise be. Corporations ought 
not, therefore, to be established, except some public 
good may probably be accomplished, which would fail in 
its accomplishment, if left to individual exertion. The 
power of establishing corporations has given rise to a 
very important and interesting discussion, in relation to 
the right of government to divest itself of its sovereignty. 



THE SCIENCE OF GOVERNMENT. 197 

The government may grant any property of which it may 
hold the title, and having made the grant, cannot resume 
it of its own sovereign will, except under its power to 
take private property for the public use, by making com- 
pensation therefor. It may grant a franchise such as the 
right to take toll upon a bridge, ferry, or pike road, and 
by payment therefor may resume it for the public exi- 
gency. Other grants or privileges conferred by the 
legislative department may be resumed ; in other words, 
the sovereign power cannot be exercised to its own de- 
struction or to the diminution of its sovereignty, so as 
thereby to destroy or impede the execution of those 
public trusts for which government is established. Offices 
may be established for public purposes, to continue for a 
definite period of time ; notwithstanding which limitation, 
they may be abolished before the lapse or expiration of 
such period, without legal cause of complaint, and with- 
out compensation for any supposed individual wrong or 
inconvenience which may occur. In all cases of grants 
by which the right of eminent domain, the power of 
sovereignty is diminished or surrendered, it must be 
clearly and distinctly shown, as no such diminution or 
surrender of sovereignty will be assumed or sustained by 
implication. The corporations of a private character to 
which I have referred, are familiar to you ; the most pro- 
minent and useful are banks, insurance companies, manu- 
facturing companies, railway charters, aqueduct, library, 
and agricultural associations. All these exercise an im- 
portant bearing upon the relations and occupations of 
the community ; they are of state creation, and subject 
exclusively to its management and control, without the 
intervention or interference of the federal government. 

The principal rights, duties, and remedies, which apper- 
tain to, or result from, the relation which subsists between 
debtor and creditor, are matters of state sovereignty, and 



198 THE SCIENCE OF GOVERNMENT. 

are regulated by its jurisdiction. The legislation of the 
several states upon this subject has generally been so 
designed as to uphold private right; to encourage the 
security and integrity of individual credit. The early 
history of the New England states, as illustrated by its 
legislation upon this subject, evinces a more decisive and 
determined effort on the part of the law-making power 
to secure and enforce the payment of debts and the per- 
formance of obligations, than is exhibited at the present 
time. In every state the property of a debtor is liable 
to be seized by legal process, and ultimately applied to 
the payment of his indebtment. This liability is not 
equally extensive in the several states. The exceptions 
and exemptions of property are more extensive in some, 
than in other of the states. Certain articles of household 
goods, wearing apparel, school books, implements of trade, 
equipments for military duty, and other articles to be 
selected by the debtor, not exceeding a fixed sum in 
value, ordinarily varying from twenty to fifty dollars, as 
appraised by a public officer, (the sheriff or his deputy,) 
whose liberality, with rare exception, is equal to that of 
the law under which he acts, are exempted in the several 
states, and excluded from the reach of the creditor. The 
legislation upon this subject develops certain principles ; 
a desire to preserve private faith, to secure the perform- 
ance of private obligation for the benefit of the creditor, 
and at the same time to enable the debtor to preserve 
the means of education and instruction for himself and 
family, and to retain the implements which are essential 
to the performance of those duties which the public 
require, and more than and beyond this, his fireside can- 
not be divested of articles, although they may be few and 
coarse, which are of daily use to the family household. 
In some of the states property cannot be arrested by a 
creditor, until after his title or right as a creditor shall 



THE SCIENCE OF GOVERNMENT. 199 

have been judicially ascertained. In other of the states 
any person who supposes himself to be a creditor of 
another may, upon his own motion, cause the property of 
his assumed or supposed debtor to be seized and retained 
until the question of right shall be determined. A debtor, 
in many of the states, may be personally arrested by a 
creditor, and in some of the states by an assumed credi- 
tor, and be thereupon imprisoned for a certain period of 
time, and until released by an examination showing that 
he has no property, except such as is protected to him by 
law. New states, those of recent settlement, are gene- 
rally far more liberal in their enactments to the debtor, 
than are those which, by a series of years, have acquired 
stability, have increased in population, wealth, and enter- 
prise. This is natural and justifiable, to a certain reason- 
able extent. In all of the several states an enlarged 
liberality has always been extended to the honest and un- 
fortunate debtor, and always should be. This is in har- 
mony with public opinion, is in harmony with the senti- 
ments of a very large proportion of those who are 
creditors. It cannot, however, be denied, that legislation 
upon this subject has frequently been extended in favor 
of the debtor to limits unreasonable, and alike injurious 
to debtor and creditor. In this, as in all other matters of 
social organization and arrangement, the moderate and 
reasonable rights and duties of all are to be regarded ; 
and especially important it is, that private and public 
faith and obligation should not be impaired, hindered, or 
endangered by legislation. It is a matter of public con- 
cernment, that there should be an end of litigation ; to 
accomplish this, statutes of limitation, of repose are pre- 
scribed by state legislation, the result of which is, that a 
party who neglects to assert his rights or title for a pre- 
scribed period of time, having an opportunity to assert 
them, is or may be forever barred. Formerly, in the com- 



200 THE SCIENCE OF GOVERNMENT. 

monwealth of Massachusetts, a party claiming title to 
land might assert it at any time within sixty years after 
the creation or origin of the title upon which he relied ; 
now this period is reduced, and limited to one third of 
that period, after the acquisition of the title. This change 
has been gradual, and cannot be regarded as adverse or 
injurious to public or to individual right. 

Transactions of a recent date, can generally be the 
subject of proof and of elucidation ; those over which 
years have passed cannot be, as some of the actors may 
have passed away, or may be beyond reach ; or if found, 
their recollection of events, of facts, may be feeble or in- 
accurate. The law extends its protection to the vigilant, 
it breaks not upon the slumbers of those who voluntarily 
sleep upon their rights. In relation to matters of a per- 
sonal nature not connected with land, the periods of limi- 
tation, ordinarily, are from one to six years, varying ac- 
cording to the character of the debt, or right, to which 
they may be applied. In several of the states, obliga- 
tions under seal, and written obligations not under seal, 
which are attested by a witness, may be enforced by the 
party at any time within twenty years. In several of 
the new states, statutes of limitation applicable to per- 
sonal obligations are more favorable to the creditor, than 
they are in the states of earlier origin. The policy of 
this legislation is conducive to the extension and enlarge- 
ment of credit, which is an element of prosperity in 
every state, when guarded and kept within proper limits, 
and in new states, where capital cannot be abundant, and 
must be sought and obtained elsewhere, it constitutes an 
active and important means of advancement. The capa- 
city of persons to contract, is also a subject regulated by 
state authority, excluding possibly, in some instances, 
aliens ; the age at which minority and its disabilities are 
determined, and the child released from parental author- 



THE SCIENCE OF GOVERNMENT. 201 

ity, so far as such authority is imposed by law, is deter- 
mined and fixed by the legislative department of each 
state for itself. The several states are also clothed with 
the power of taxation for the support and maintenance 
of government, for the education of the people, for the 
construction of roads, for the support of the judiciary, 
and for all the trusts confided to them. These taxes are 
direct upon persons, property, occupation, and upon in- 
come. They are assessed by the state, by counties, by 
towns and cities, each assessing for the purposes confided 
to their several care and action. Generally, every species 
of property is liable to taxation, although in some of the 
states the assessments, or a large proportion of them, are 
assessed upon the land and upon buildings. The power 
of taxation is limited, and is exercised by those upon 
whom it operates. A large part of the money raised 
under this power, is for the municipal and local purposes 
of the towns, so that the inhabitants, to a great extent, 
upon whom taxes are levied, determine the amount which 
shall at any time be assessed, and in various ways they 
participate in the expenditure of the money raised. The 
government is clothed with very efficient and speedy 
means of compelling payment, and frequently takes a 
precedence or priority over individual claimants, upon 
the ground that the public interests are more important 
and essential than any mere individual right. And under 
some circumstances, the citizen who neglects to pay his 
tax, is deprived of the right of suffrage. This, at all 
times, is a powerful inducement to parties to pay, and, 
at some periods of excitement, is a most successful aid to 
the government in its collections. 

The militia, in some of its features and incidents, is a 
matter of state authority and regulation, and may appro- 
priately be regarded as a state institution, notwithstand- 
ing the qualified authority over it, with which the federal 

26 



202 THE SCIENCE OF GOVERNMENT. 

government is invested. The expense of this establish- 
ment is borne in part by the individuals enrolled, and in 
part by the government. The militia has always been 
regarded by a great majority of the people with pride 
and commendation, although many of those enrolled 
when the country is at peace, manage, on training days, 
to be absent, and others who may be present, act merely 
as spectators. In a state of war, every class of the com- 
munity readily furnishes its quota of men, without refer- 
ence to personal or party considerations, thus exhibiting 
an ever present and active regard for their country and 
its institutions. 

Offences are matters of state and of national legisla- 
tion, each sovereignty providing for those which may oc- 
cur against its jurisdiction, constitution, or laws. As a 
general position or principle of law, it may be said that 
every country, every government, has the exclusive 
power and authority to say, what shall constitute an of- 
fence against itself, how it shall be proved and how pun- 
ished. No government undertakes to enforce the penal 
or criminal code, or statutes of another jurisdiction. 
Under our system, the two governments exercise juris- 
diction over the same persons, and over the same terri- 
tory, but an offence against one sovereignty is not an of- 
fence against the other. It has, however, been adjudged 
that the same act may constitute an offence against the 
state and the national authority. A party who felonious- 
ly takes from the post-office, or from the custody of a 
mail-carrier, a letter which contains money, may be in- 
dicted in a state court, for larceny committed in taking 
the money contained in the letter, and at the same time 
in the courts of the United States, for a violation of the 
laws of the United States regulating the post-office de- 
partment, and providing for the security of letters and 
papers transmitted. So far as I have examined, it seems 



THE SCIENCE OF GOVERNMENT. 203 

to be the result of judicial authority that this may be 
done. In practice, however, ordinarily, after the institu- 
tion of a criminal proceeding in one court, based upon a 
particular act, it has not been usual to institute proceed- 
ings in the courts of another jurisdiction founded upon 
the same act. In one case, in which an indictment had 
been found against a party in a state court, and also in a 
court of the United States, founded upon one and the 
same act, the taking of a letter from the post-office by a 
post-master with intent to destroy the same, and of con- 
verting to his own use a bank bill which it contained, the 
state attorney-general voluntarily abandoned the proceed- 
ing which he had instituted in the state court, after the 
party accused had been arrested by process from a court 
of the United States. 

Notwithstanding the course of judicial proceeding to 
which reference has been made, from which it is inferred, 
that the same act may constitute two offences, neither of 
which is merged in the other, because the act constitutes 
an offence against each of the two sovereignties ; it 
would be disingenuous in me not to say, I do not per- 
ceive the fitness or necessity of creating or deducing 
from one and the same act two offences. A letter in the 
post-office is in the custody of the United States ; this 
custody is exclusive of any state control ; it may, there- 
fore, without impropriety or inconsistency be said, that a 
letter in such case, although it contain money or other 
article of value, so long as it remains in such custody, is 
without and beyond the jurisdiction of a state and of its 
judiciary, upon the same principle which is and would 
be applied to an act done upon territory within the ex- 
clusive jurisdiction of the United States, and over which 
the jurisdiction of a state does not extend. The several 
state constitutions have made ample provision for the 
protection of such persons as may be accused. Great 



204 THE SCIENCE OF GOVERNMENT. 

humanity is manifest in all our legislation upon this sub- 
ject. The party has a right to a definite and accurate state- 
ment of the alleged offence; a right to be affronted by his 
accusers ; to have such witnesses and counsel in his behalf 
as he may produce ; to be tried by a jury composed of his 
neighbors ; and every reasonable doubt as to the guilt of a 
party accused, which may arise upon the proof exhibited 
against him, is available to his advantage and discharge. 
In some cases, the party accused has a right to the process 
and power of the government, by which, at the public cost, 
he may compel the attendance of his witnesses, and by 
the usage of the court, in certain cases, is supplied with 
counsel by appointment of the court, if he does not elect 
or has no ability to supply his legal adviser from his pri- 
vate resources. The legislation of the several states, to 
which reference has been made, and of which I have 
briefly presented some of the most prominent subjects, 
exhibits in many matters great similarity and uniformity. 
There are certain fundamental principles of right, of law 
and justice, which may be applied to every state in the 
union, uninfluenced by local causes, habits, or climate. 
In other particulars this similarity does not exist, and can- 
not, inasmuch as the laws of every state must be estab- 
lished in conformity with the habits, associations, and 
business of its people, which are influenced by climate, by 
origin, and by many other causes. This diversity of 
legislation is a result flowing directly from the existence 
of different independent sovereignties, whereby a diffu- 
sion and division of authority is created ; which diffusion 
and division of power is the main source of the strength 
and the support of the union. 

The law which is administered in the several states 
is derived from several sources. First and paramount 
to all other and every other source, is its constitution, 
against which no other law or official act can avail. Next 



THE SCIENCE OF GOVERNMENT. 205 

in force aud effect are the statutes of a state rightfully 
passed in conformity with its constitution, not violating 
that of the United States. In addition to these, and 
where these do not control, resort is and may be had to 
the common law, and to the usages of trade or of locality. 
The constitutions and statutes are written ; the common 
law and usages are unwritten. 

The common law may be designated as a collection or 
series of principles, as a collection or series of intend- 
ments, deduced from the observation and experience of 
mankind, as applied to particular facts or relations of life. 
An individual may hold two offices, or may have two dis- 
tinct powers or agencies conferred upon him, and may do 
an act which under one of the offices or powers he may 
rightfully do, without designating the office or the power 
under which he assumes to act ; in such case, generally, 
the common law will intend that the individual meant to 
act under the office or power which authorized the act, 
so as thereby to render an act available which otherwise 
might not operate to accomplish the purpose designed. 
This simple illustration is sufficient to exhibit the basis 
upon which all legal intendments are made. The com- 
mon law of many of the several states is derived from 
the common law of England, and such common law, 
where it is applicable and not inconsistent with our sys- 
tem of government, our institutions or statutes, is the 
law daily administered. The common law cannot be ap- 
plied in opposition ,to our written constitutions or to our 
laws, or the policy by which they are dictated. 

Usage is another source of right and of law, the nature 
and character of which is familiar to you ; the principle 
upon which usage is applied to the transactions of life, to 
the conduct and liabilities of persons, is in harmony with 
reason, with common sense. If an individual of one 
place sends merchandise to a merchant or factor resident 



206 THE SCIENCE OF GOVERNMENT. 

at another place for sale, without giving any instruction 
as to the mode of sale, the consignee may sell it at public 
sale, through the agency of an auctioneer, upon proof 
that it is usual and customary, at the place at which the 
sale is to be made, for consignees of such property to 
make sales thereof at auction. The principle of this 
position is a sound one, and is readily understood. If a 
person at a particular place is requested to do an act, or 
perform a service, in the absence of instruction or direc- 
tion to the contrary, he may and should do the act, or 
perform the service, in the mode in which such acts or 
services are usually performed. No usage, however, 
which is illegal, or in violation of an express contract or 
stipulation of the parties, can be successfully set up. And 
he who in any case relies upon usage, must show its 
existence, except in certain cases where the usage has 
been so frequently proved in court, that it may and will 
be regarded as known to the court, or as constituting a 
part of the law-merchant. 

The general outline which has been exhibited in this, 
and in the preceding lecture, exhibits the character and 
extent of state legislation, and the source or principles of 
law, from and by which it is carried into effect. This 
legislation surrounds all the ordinary transactions of the 
community ; the obligations and liabilities resulting from 
the relations of life, as known to a government based 
upon the popular will of those subject to its power. This 
legislation is subject to certain restrictions and prohibi- 
tions designed to distinguish and mark the boundary 
which exists between the national and state jurisdiction, 
and to secure to the citizens of the several states certain 
immunities or exemptions from state authority. These 
restrictions and prohibitions are for the protection of 
public and of private rights. They are contained in the 
constitution of the United States, which instrument pro- 



THE SCIENCE OF GOVERNMENT. 207 

vides that congress may at any time by law, make regu- 
lations as to the times, places, and manner of holding 
elections for senators and representatives, or may alter 
such as may have been established by the legislature of 
any state, provided that congress shall not interfere as to 
the place of choosing senators. This power of congress 
has not been, so far as I know, exercised, and probably 
no occasion for its exercise will ever occur. The neces- 
sity of the power conferred upon congress in this matter 
is apparent, inasmuch as the several states, if no such 
power had been conferred upon congress, by neglect to 
provide for the election of representatives and senators 
to the congress of the United States, might embarrass 
and endanger the interests and duties of the federal gov- 
ernment. No state shall enter into any treaty, alliance, 
or confederation, — grant letters of marque and reprisal. 
No state shall, without the consent of congress, lay any 
imposts or duties on imports or exports, except what 
may be absolutely necessary for executing its inspection 
laws ; and the net produce of all duties and imposts laid 
by any state on imports or expo'rts, shall be for the use of 
the treasury of the United States; and all such laws 
shall be subject to the revision and control of the con- 
gress. No state shall, without the consent of congress, lay 
any duty of tonnage, keep troops or ships of war in 
time of peace, enter into any agreement or compact with 
another state or with a foreign power, or engage in war, 
unless actually invaded, or in such imminent danger as 
will not admit of delay. These restrictions upon state 
legislation, constitute the most important and imposing 
element of the federal jurisdiction ; they may be regarded 
as descriptive of the boundary of the several sovereign- 
ties of which the system is composed. They confer upon 
the federal or national government the entire control of 
the foreign relations of the country as a whole. The 



208 THE SCIENCE OF GOVERNMENT. 

sagacity which led to the union and to the government, 
based upon and resulting therefrom, must be conceded 
from every consideration, however slight, which may be 
given to the subject. It would be difficult for thirteen, 
and certainly impracticable for thirty-one or more, inde- 
pendent sovereignties, embracing a continuous territory, 
having no natural walls or barriers between them, to 
make the same political arrangements with each other, 
or with foreign nations. Difference of policy, if the 
several states were disconnected and at liberty to regu- 
late and negotiate, upon their own suggestion, with their 
neighbors and others would exist, and not improbably 
would give rise to collisions and jealousies between them. 
Territory, foreign to that which appertains to the several 
states, might furnish inducements to one, or to several of 
the states, for its trade and friendship, or for its hostility, 
its subjugation or acquisition, which it would not afford 
to other of the several states, or which would not arise 
as the states are now constituted, under and controlled in 
these matters by the union. 

In a disconnected, independent situation, each state 
acting for itself, the citizens or residents of a state would 
be more likely and more competent to invent schemes of 
supposed individual advantage, growing out of the for- 
eign intercourse and relations of the state, which might 
ultimately prove disastrous and ruinous to the political 
existence of the state, as a republican government. 
These supposed difficulties or contingencies are avoided 
by the restrictions, by which the authority and jurisdic- 
tion of a state is prohibited from any and all interference 
in matters not connected with the domestic and local af- 
fairs which arise within and concern its own territory 
and citizens exclusively. The constitution also provides, 
that no state shall coin money, or make any thing but 
gold and silver coin a tender in payment of debts. In a 



THE SCIENCE OF GOVERNMENT. 209 

rude state of society, its trade and business operations 
are carried on and conducted, to a considerable extent, by 
the means of barter and exchange. As it progresses in 
civilization, in wealth, in art and science, such mode of 
negotiation becomes cumbersome, inadequate, and it is 
abandoned for the use of gold and silver manufactured 
or made into coin. Coin, generally, has upon it the head 
of the sovereign, or some insignia of the government 
under whose authority it is issued, with a mark or figure 
showing its legal value. This coin circulates as, and is 
the money of the country in which it is made, and is re- 
garded as the standard of value in all negotiations. In 
another stage of society, in which the mercantile and 
manufacturing interests and the agricultural pursuits be- 
come enlarged and extended, banks are established, and 
their bills, as a matter of consent, are used as substitutes, 
and as the representatives of gold and silver. In all coun- 
tries in which gold and silver are used as coin, it is issued 
under the authority of government, by which its quality 
and value or denomination is regulated. The external 
and territorial aspect of the United States is favorable to 
the residence of a people of the same general habits and 
views, and the people must, from necessity of position, 
have intercourse, more or less extended, with each other. 
This fact shows the expediency and fitness of certainty 
and uniformity, in those matters which have no peculiar 
local bearing. The creation and security of money, of 
coin, is as essential in every state, as it can be in any one 
of the several, states; it was, therefore, of great advan- 
tage to the people of the United States, to have its regu- 
lation conferred upon the federal government, to the ex- 
clusion of the states. Another branch of the same sub- 
ject is, the mode in which debts may, as matter of right, 
be paid and discharged. In the early history of the 
United States, many difficulties were encountered, and 

27 



210 THE SCIENCE OF GOVERNMENT. 

losses sustained, hy the inability of the people to perform 
their promises, to pay their debts ; which inability arose 
from the condition of society and of business generally. 
In all such emergencies, repudiation is a remedy adopted 
by many, whose means are inadequate ; and whenever a 
large proportion of the community are surrounded by 
pecuniary embarrassment, resort is had to stop, to stay- 
laws ; at such times the science of law becomes popular, 
the aid of lawyers is sought, because the one through the 
assistance of the others is made available, to furnish the 
means of paying or of delaying payment of debts until a 
more convenient season. To obviate these difficulties, to 
prevent legislation such as I have suggested, the constitu- 
tion of the United States wisely restrained the power 
and jurisdiction of the several states, by saying that they 
should not make any thing except gold and silver, made 
into coin under the direction of the United States, a legal 
tender in payment of debt. Every one who reads the 
early history of the several states, or of any new coun- 
try, must perceive and admit the force and propriety of 
the restriction. Another important provision is that 
which says, no state shall emit bills of credit. This 
clause of the constitution has been the subject of judicial 
discussion and decision. Efforts have been made to evade 
or avoid the provision, and much difference of opinion 
has been entertained by political and professional persons. 
Many of the several states have been accustomed to bor- 
row money, and to furnish corporations with their credit ; 
and in so doinp;, in some instances, have caused great em- 
barrassment a.i'd loss, and have, beyond doubt, brought 
reproach upon our country and its institutions. The loan 
of money, or the procuration of money by the several 
states, has been accomplished by the means of bonds and 
obligations of various kinds, payable or redeemable at a 
fixed time, or at the pleasure of the state issuing them, 



THE SCIENCE OF GOVERNMENT. 211 

with interest. The words, bills of credit, are of a mer- 
cantile character and use, and it is very common for a 
merchant to authorize another to draw upon him, or upon 
his foreign banker or correspondent, and to give or fur- 
nish a letter of credit, limited or without limit. These 
obligations of the several states, issued when they effect 
a loan, or dispose of their responsibility and credit to 
others, if a close and rigid construction of the constitu- 
tion of the United States had been adopted, must have 
been rejected and disallowed as an infringement of the 
provision in relation to bills of credit. This construction, 
however, has not been adopted, and it is to be regarded 
as settled, that the several states may, without doing vio- 
lence to the constitution of the United States, issue bonds 
and other obligations, in payment or as evidence of 
money borrowed for the public use. 

This prohibition has generally been approved and com- 
mended. One of the writers of the Federalist, in its ad- 
vocacy and support, said, "this prohibition must give 
pleasure to every citizen, in proportion to his love of 
justice and his knowledge of the true springs of public 
prosperity. The loss which America has sustained since 
the peace, from the pestilent effects of paper money on 
the confidence between man and man, on the confidence 
in the public councils, on the industry and morals of the 
people, and on the character of republican government, 
constitutes an enormous debt against the states charge- 
able with this unadvised measure, which must long re- 
main unsatisfied, or rather an accumulation of guilt, 
which can be expiated no otherwise than by a voluntary 
sacrifice on the altar of justice of the power which has 
been the instrument of it. 

In addition to these considerations, it may be observed, 
that the same reasons which show the necessity of deny- 
ing to the states the power of regulating coin, prove, 



212 THE SCIENCE OF GOVERNMENT. 

with equal force, that they ought not to be at liberty to 
substitute a paper medium instead of coin. Had every 
state a right to regulate the value of its coin, there might 
be as many different currencies as states, and thus the 
intercourse among them would be impeded. Ketrospec- 
tive alterations in its value might be made, and thus the 
citizens of other states be injured, and animosities be 
kindled among the states themselves. The subjects of 
foreign powers might suffer from the same cause, and 
hence the union be discredited and embroiled by the in- 
discretion of a single member. No one of these mischiefs 
is less incident to a power in the states to emit paper 
money than to coin gold or silver." From this com- 
mentary, which I have copied from the work referred to, 
it seems, that the design and object of the prohibition 
upon the states to emit bills of credit, was to prevent the 
issuing and circulation of paper to be used by the com- 
munity for its ordinary purposes as money. This is the 
sense in which the terms have generally been under- 
stood ; they were so used in relation to the paper cur- 
rency issued by congress during the revolution, and to 
similar currency issued by the several states. These 
words had been used in this manner prior to and at the 
adoption of the federal constitution, and the fair pre- 
sumption is, that the adoption of the words was an adop- 
tion of the meaning or use which had been applied to 
them ; this is a common and ordinary principle of con- 
struction. The late Mr. Justice Story said, upon this 
subject, that bills of credit, at the adoption of the consti- 
tution, were understood to signify a paper medium in- 
tended to circulate between individuals, and between gov- 
ernment and individuals, for the ordinary purposes of 
society ; and in language peculiar to himself, he exhibited 
the difficulties which had arisen, and which must arise 
from their use for such purpose. 



THE SCIENCE OF GOVERNMENT. 213 

In a case against the state of Missouri, the supreme 
court of the United States say, the term "bill of credit" 
may comprehend any instrument by which a state en- 
gages to pay money at a future day, thus including a cer- 
tificate given for money borrowed. But the language 
of the constitution, and the mischief to be prevented, 
limit the interpretation of the terms used in the instru- 
ment ; the word emit is never employed in describing 
those contracts by which a state binds itself to pay money 
at a future day for services actually received, or for 
money borrowed for present use. To emit bills of credit 
conveys to the mind the idea of issuing paper intended 
to circulate through the community for its ordinary pur- 
poses as money, which paper is redeemable at a future 
day. The same provision has more recently, in a case 
against the bank of Kentucky, been before the same 
court, in which these principles were not denied or re- 
jected ; but they were applied, by a majority of the court, 
to a state of facts, which might well have induced a dif- 
ferent application of the principles than was in such case 
made by the court. The restrictions in relation to 
money, to the payment of debts, by any thing except 
gold and silver, to the emission of bills of credit, were de- 
signed to uphold private credit, to prevent injustice by 
any one state to the citizens of another, or to the sub- 
jects of foreign countries, who might be induced or per- 
mitted to enter into contracts and negotiations with 
American citizens ; they were also designed to restrain, 
to prevent the several states from embarking in enter- 
prises not essential to the legitimate exercise of their 
powers of sovereignty. The several states are also pro- 
hibited from passing bills of attainder and ex post facto 
laws. 

Prior to the union, bills of attainder were frequently 
passed by the several states to prevent offences against 



214 THE SCIENCE OF GOVERNMENT. 

their sovereignty. Political offences are dangerous 
matters of legislation, and should not be extended or 
applied, except to cases of the most urgent necessity. 
The power of the states to pass such laws, after the 
adoption of the federal constitution, was not essential to 
the safety or security of the states, as independent sove- 
reignties, because the United States, in its constitution, 
entered into a stipulation to maintain in the several 
states their sovereignty, and a republican form of gov- 
ernment. 

Laws, designed to operate upon transactions past, and 
which were not the subject of legal cognizance, at the 
time of their accomplishment, cannot be made with pro- 
priety. Every person is by legal intendment presumed 
to know what the law is, and is required to regulate his 
conduct in conformity with his legal duty. Ignorance of 
law is not, and cannot be regarded as an excuse or justi- 
fication of its violation. But no one can reasonably or 
rightfully be expected or required to know what the law 
may be at a future time. No state is permitted to grant 
any title of nobility. This prohibition upon state author- 
ity has not been so far, in our history, of much practical 
importance. At the time of the adoption of the consti- 
tution of the United States, great fear and jealousy upon 
this subject was entertained, and much discussion was 
had in relation to the title which should be conferred 
upon the chief executive magistrate; these fears and 
apprehension of danger from such source have been dis- 
pelled. A mere title, without political power or dignity, 
or property connected therewith and resulting from its 
possession, is of no value, and where these are enjoyed, 
the title is of little import ; a name or title, without poli- 
tical power or dignity or estate, may well be regarded 
as a reproach to him who assumes or purchases it, or 
upon whom it may be conferred. The several states are 



THE SCIENCE OF GOVERNMENT. 215 

prohibited from the creation of new states. No new 
state can be formed or erected within the jurisdiction of 
any other state ; nor any state be formed by the junction 
of two or more states or parts of states, withotit the con- 
sent of the legislatures of the states concerned, as well 
as of the congress. The same principle which restrains 
the several states from negotiating political contracts with 
foreign nations, is exhibited in the restrictions in relation 
to the formation of new states. By the means of these 
provisions, political aspirations which some of the states 
might entertain for their own enlargement, aggrandize- 
ment, or relative importance, are checked, and each state 
is thus enabled to pursue its true dignity, by an exercise 
of its appropriate trusts, and by a watchful regard for the 
welfare of its citizens. The constitution contains another 
restriction upon state power which has been the subject 
of frequent application, and has been of the utmost 
importance to the security of private right and of public 
faith. The provision is, " no state shall pass any law im- 
pairing the obligation of contracts." It is not natural or 
easy to suppose, that any free government would under- 
take by its legislation to interfere with the private con- 
tracts of its citizens, in matters appertaining to mere pri- 
vate right. The protection of such right is the primary 
object of every legitimate government, inasmuch as 
public right is the result of, and is designed to preserve, 
individual right. The supreme court of the United 
States, in its adjudications upon this clause of the consti- 
tution, lias commended itself to the respect and gratitude 
of the country. In one of the earliest cases in which 
the subject was discussed, a statute of Georgia was pre- 
sented to the court for consideration. This state passed 
an act authorizing a patent to issue, granting a tract of 
land lying within the limits of that state; after the 
patent had been granted, pursuant to the act which 



216 THE SCIENCE OF GOVERNMENT. 

authorized it, the legislature repealed the act. The court 
determined that this repeal was repugnant to the consti- 
tution of the United States, because it impaired the 
obligation of the contract, which the patent implied. 

The title to land, and its acquisition, is a matter of state 
legislation ; but a state or an individual having granted 
land, and having received a consideration therefor, cannot 
rightfully resume or impair the grant, because such grant 
is a contract executed. In another case, the state of 
New York passed an insolvent law, by which it undertook 
to discharge debtors from their liabilities incurred prior 
to its enactment ; this statute was regarded as unconsti- 
tutional, because it impaired the obligation of contracts, 
and so far it was adjudicated to be an unauthorized state 
legislation, and void. Many other cases of similar char- 
acter have arisen. In all these cases, the state authori- 
ties have readily yielded, and the firmness and integrity 
of the highest judicial tribunal known to our laws, have 
been admitted. 

The most important case in which this clause of the 
constitution has been discussed, is that commonly called 
the Dartmouth College Case. This institution had a 
charter from the British crown prior to the revolution, 
by and under which property was holden for the benefit 
of the institution, which had been given by the Earl of 
Dartmouth and by other individuals. The legislature of 
New Hampshire undertook to increase the number of the 
trustees, and to exercise control over the college at its 
pleasure ; this was resisted, and the sanctity of contract, 
by the decision which was made, was placed upon an 
enlarged, comprehensive, and firm basis. The effect which 
has been produced by the principles and reasoning of 
this case cannot be measured. The case, in its preparation 
and argument, was conducted on both sides with ability, 
and by eminent men. The brief in favor of the college 



THE SCIENCE OF GOVERNMENT. 217 

was mainly prepared by an individual who some few 
years since passed away ; an individual who, when living, 
as a jurist had no rival, when dead left no superior * 

The argument upon the same side was made by an in- 
dividual who has since, and now recently passed away ; 
although dead, he lives in our recollection, in his public 
works, in his public acts ; he lives in the influence which 
those works, those acts will exert upon our constitution 
and the institutions which it upholds.* 



* Hon. Jeremiah Mason ; he was assisted by Hon. Jeremiah Smith, 
f Hon. Daniel Webster. 



28 



LECTURE VIII 



THE FEDERAL AND STATE JUDICIAL DEPARTMENTS. — IN GENERAL TERMS, THE 
BOUNDARY BETWEEN THEM MAY BE DESCRIBED BY SAYING, THE FEDERAL 
JUDICIARY IS INTRUSTED WITH THE FINAL AND CONCLUSIVE ADJUDICATION 
OF ALL MATTERS ARISING UNDER OR DEPENDENT UPON THE CONSTITUTION, 
LAWS, OR TREATIES OF THE UNITED STATES, OR THE LAW OF NATIONS. — THE 
STATE JUDICIARY IS INTRUSTED WITH THE FINAL AND CONCLUSIVE ADJUDICA- 
TION OF ALL MATTERS WHICH DO NOT ARISE UNDER OR DEPEND UPON THE 
CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES, OR THE LAW OF 
NATIONS.* 



Liberty is a relative term. Some persons regard it as 
a right in every individual to act in accordance with his 
own judgment. Such liberty is unknown to, and can- 
not be found in connection with, or as the result of gov- 
ernment, or of the law of society. Government and so- 
cieties are established for the regulation of social inter- 
course, of social institutions. Civil liberty is not depen- 
dent upon any particular form or system to the exclusion 
of every other. The purpose of legitimate government 
is v the protection of person, character, and property. This 



* In speaking of the legislative department, I used the terms " supreme and 
exclusive." In relation to the judiciary, I use the terms " final and conclusive," 
not from any difference in the extent of the different powers, but because a 
difference exists in the form in which they may be rendered available. Some 
suits, commenced in a state court, may be transferred to a court of the United 
States. In a class of cases the supreme court of the United States may 
review the decisions of a state court by writ of error. 



220 THE SCIENCE OF GOVERNMENT. 

may be extended to the citizen by an absolute govern- 
ment. Experience and history, however, admonish us, 
that such government does not ordinarily afford such pro- 
tection, and cannot with safety be relied upon. Pro- 
tection may be extended to the citizen of a constitutional 
government, in which few only of the people exercise 
any control. Certainty of protection to person, cha- 
racter, and property, can only be attained in a govern- 
ment in which all the people, or a very large proportion 
of them, exercise an influence in the establishment and 
in the management of the public trusts, and in which these 
trusts and the will of the people are carried into effect 
through the instrumentality of different institutions or 
departments. Our system, as has been suggested, is com- 
posed of different sovereignties, each sovereignty having 
its own departments and division of power. The legis- 
lative, judicial, and executive departments are equal in 
rank and dignity. They are independent of each other, 
and are charged with distinct and different trusts. The 
laws are established by the first, construed by the second, 
and executed by the third. This is familiar to you ; the 
machinery is simple, and you perceive without difficulty 
how these departments, parts of an entire and of the same 
system, act in harmony with each other. The sugges- 
tion of collision, of conflict between these departments, is 
not often made. The legislative department is governed 
in its action by a constitution, and by certain fixed prin- 
ciples, within which it incurs no responsibility to, or 
danger of resistance from, any other department. And 
so long as its action is restricted within the limits imposed, 
its decrees constitute the law of the sovereignty to which 
it appertains. Whenever it disregards and goes beyond 
these limits, its decrees are of no force, and they may and 
will be declared by another department void and of no 
effect. The judicial department is not intrusted with 



THE SCIENCE OF GOVERNMENT. 221 

power to say what the law shall be upon any subject; it 

may and must say what the law is. It determines the 

rights of individuals ; it determines the nature and ex- 
es 7 

tent of obligation, which society, through its legislative 
department, has imposed upon its members. It controls 
the action of officers in all matters in relation to which 
they are not clothed with personal discretion. It re- 
strains such discretion within constitutional and legal 
limits. It determines whether the legislative department 
has or has not in any particular transcended its rightful 
jurisdiction. The executive department is bound to see 
that the laws are executed and carried into effect, so far 
as they concern the public interest or the public peace, 
and to suppress all and every individual effort which may 
be made, by any member or members of the community, 
to assert his or their actual or supposed rights, in a mode 
not warranted by law. No person is allowed to be his 
own avenger, or to take the law into his own hands. He 
must resort to the departments to which reference has 
been made ; he must seek protection in and from the in- 
stitutions established or permitted by government. 

I have thus stated the outline of these departments, for 
the purpose of deducing or exhibiting an analogy there- 
from, which may illustrate our system, composed of two 
sovereignties. The several departments of which I have 
spoken act harmoniously and in unison, because they 
act for different purposes, although they act upon the 
same territory, upon the same persons, upon the same 
contracts, and upon the same things. Equally simple and 
consistent it is to say and to perceive, that two sove- 
reignties acting upon the same territory, upon the same 
persons and things, for distinct and separate purposes, 
may act in unison and in harmony with each other. 
The national government, through the instrumentality of 
its legislative, judicial, and executive departments, may 



222 THE SCIENCE OF GOVERNMENT. 

enact, construe, and execute a statute within and upon 
any subject confided to its jurisdiction. The state gov- 
ernment, through its legislative, judicial, and executive 
departments, upon any subject confided to its jurisdic- 
tion, may enact, construe, and carry into effect a 
statute. No difficulty arises or can arise between the 
two sovereignties, because they act upon different sub- 
jects or for different purposes* 



* Law Reporter, New Series, vol. iv. p. 335. Boston, October, 1851. — Con- 
flict of Laics. — Federal and State Sovereignty. — Opinion of Charles B. Good- 
rich. 

Case Stated. — " Thomas Sims, said to be a fugitive from service or labor, 
due to a citizen of the state of Georgia, is now in the actual custody of Charles 
Devens, marshal of the United States, by virtue of an order or warrant issued 
by a commissioner of the United States, upon the application of the party, by 
his agent, to which the service is said to be due. He is also in the custody of 
said Devens, under and by virtue of an order or warrant issued by a commis- 
sioner of the United States, founded upon a complaint against Sims, for an 
alleged criminal offence against the laws of the United States." 

Questions Proposed. — " 1st. Has the sheriff of Suffolk county, a state officer, 
by himself or deputy, a legal right, by virtue of process, civil or criminal, issued 
by and under the authority of the commonwealth of Massachusetts, to arrest 
and take the said Sims, from the custody of said Devens, against his consent, 
and for that purpose use such force as may be requisite to accomplish such 
seizure ? 

" 2d. Suppose the criminal process in the hands of Devens shall be released, 
abandoned, or in any manner become inoperative, — the said Devens retaining 
the said Sims under the process by which he holds him as an alleged fugitive, 
— has the sheriff or his deputy, in such event, by virtue of state process, civil 
or criminal, a legal right to seize said Sims, and to use such force as may be 
adequate to divest the custody of said Devens ? 

Opinion. — "I have examined and carefully considered the two questions 
upon which an opinion is asked. I have no hesitation or doubt, in relation to 
the law applicable to the case stated in either aspect exhibited. The sheriff 
has no legal right or authority to divest the custody of the marshal of the United 
States, against his consent, under the state of facts presented in either of the 
questions proposed. If such attempt to use force should be made by the sheriff, 
it will be the right and duty of the marshal to resist, at all hazards, and the pro- 
cesses in the hands of the sheriff will afford him no protection for any conse- 
quence which may result from such a conflict of force. I suppose any person, 
even slightly conversant -with the principles of jurisprudence, would readily 
answer the first inquiry as I have answered it. The solution of the second 



THE SCIENCE OP GOVERNMENT. 223 

No system of government is perfect, no system of gov- 
ernment can at all times and under all circumstances, 



question is equally simple and clear, as is that of the first. Upon this, how- 
ever, I am aware, a different opinion has been expressed by gentlemen of the 
legal profession, basing their opinion upon an assumption, that criminal process 
will defeat and override civil process. I will, therefore, state some of the rea- 
sons of my opinion upon the second question. The inquiry which results from 
the case stated, in its second supposed aspect, is not whether criminal process is 
paramount to civil process. It is whether the commonwealth of Massachusetts 
can, by force, legally and rightfully dispossess the United States of a person of 
which the United States, by its officer, under its laws, has actual custody and 
possession. It is distinctly a question of sovereignty. The use or purpose to 
which the United States, the sovereignty in actual possession, may desire to de- 
vote the person which is in such possession, the use or purpose to which the 
commonwealth of Massachusetts may design to appropriate the person, when 
the commonwealth shall have obtained the same, are collateral and immaterial 
matters, when discussing the question whether the commonwealth, by its offi- 
cers, may legally use force to acquire the possession. 

" The use and purpose of Massachusetts must be deferred until the use and 
purpose of the United States shall, in some legal manner, be compensated, 
satisfied, or released ; or until some judicial tribunal, having authority in the 
premises, shall adjudicate that the claim of Massachusetts is paramount to that 
of the United States, and thereupon stay or release, temporarily or permanent- 
ly, as the case may be, the custody of the United States. The marshal of the 
United States, in relation to process in his hands, civil or criminal, is subject to 
the action and control of the judiciary of the United States, and if the com- 
monwealth of Massachusetts has a title to person or property, in the hands of 
the marshal, paramount, in a legal view, to the title of the marshal, the courts 
of the United States are competent to direct him to deliver the person or pro- 
perty so held by him, to those having the paramount title. The result at which 
I have arrived, may be illustrated by a variety of considerations, by every con- 
sideration which can legally be applied to the subject of discussion. The great 
argument, in opposition to the view presented, is that criminal process is and 
must be paramount to civil process. It is so when the civil and criminal pro- 
cesses issue from the same sovereign. The commonwealth of Massachusetts, 
when it has a person or property in its custody and control, which is liable to 
several distinct obligations, some of a private character, some of a public nature, 
may well say, in conformity with its own laws, to which obligation, the person 
or property shall be applied. It may well say its civil process shall be merged, 
suspended, or postponed by its criminal process and its exigencies. It cannot 
say, that the sovereignty of the United States, which has once rightfully attached 
to person or property, may legally be divested by force. 

" If the supposed right of Massachusetts is paramount, upon legal principles, 
to that of the United States, its remedy is by application to the judiciary of 



224 THE SCIENCE OF GOVERNMENT. 

accomplish every purpose which it might be convenient 
or desirable to have accomplished. Under our system, 



the United States, which, if the assumption of the commonwealth be well 
founded in law, will direct its officer and those acting under the authority of the 
United States to withdraw. The same result flows from the character of the 
authority which the law reposes in the sheriff. His official duties are circum- 
scribed in their exercise to and within his legal precinct. The term ' precinct,' is 
technical, and in the English and in the American law ordinarily means a district, 
or a certain defined territory. This is not its only meaning ; and in the com- 
plex system of government, under which the American people live, ex necessi- 
tate, must and does have a more extensive and a broader import. The precinct 
of the sheriff, territorially, embraces the county of Suffolk, and, in some speci- 
fied cases, not material to the present inquiry, is extended beyond. So the 
precinct of the marshal of the United States embraces the same territory. 
When the marshal seizes person or property, within the territory common to 
both sovereignties, that of the United States, and of the state, quoad such per- 
son or property, they are, during the continuance of such seizure, without the 
legal precinct of the sheriff; when the sheriff makes the first seizure, and 
thereby has possession, the same result occurs as to the rights of the marshal. 

" So it is a principle well established, that when two jurisdictions have con- 
current authority, the one which is first exercised, so as effectually to attach, is 
no longer concurrent with, but becomes and is exclusive of the other. In a 
single word, every independent sovereignty is the exclusive judge of its own 
powers, and may and must determine the extent thereof, and will, so far as 
legal right is concerned, so determine, until put down, not by right, but by 
force — when its independence, its sovereignty will cease to exist. The result 
is therefore irresistible, that, when the marshal of the United States has a per- 
son in custody, under process issued by authority of the United States, a sheriff 
of the commonwealth of Massachusetts, with a state process against the same 
person, cannot, by force, legally divest such custody for any purpose. Assume 
that the purpose to be accomplished by the state process is of more importance 
than the purpose of the process in the hands of the marshal, and is paramount 
thereto, the marshal may entertain a different opinion and act upon it. Neither 
the marshal nor the sheriff is charged by law with the responsibility of deciding 
at their peril any such difference of opinion or dispute. The marshal being in 
possession, has the legal right, until some judicial tribunal, having authority in 
the premises, shall adjudge that his title must yield to some other. These views 
are sustained by legal and constitutional authority ; they constitute and result 
from the principles upon which our institutions stand, and upon which alone 
they can successfully stand. 

" In a case before the late Mr. Justice Story, The Invincible, (2 Gallison, 44,) 
the court say, ' The acts done under the authority of one sovereign can never 
be subject to the revision of the tribunals of another sovereign.' 

"In The United States v. Peters, (5 Cranch, 115,) chief justice Marshall, in 



THE SCIENCE OF GOVERNMENT. 225 

the rightful purpose or enactment of one and of the \ 
other sovereignty may fail of effect, from an inability to 



giving the opinion of the court, says, ' The legislature of a state cannot annul 
the judgment, nor determine the jurisdiction of the courts of the United States ; 
if so, the constitution becomes a solemn mockery.' 

"In Peck v. Jenness, (7 Howard, 624, 625,) the court adjudicate, in conform- 
ity with its previous uniform course of decision, that the courts of the United 
States cannot seize upon property in the custody of the officers of a state court, 
which had rightfully attached. The court in its judgment says, ' Where the 
jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, 
have once attached, that right cannot be arrested or taken away by proceed- 
ings in another court. These rules have their foundation not merely in comity, 
but on necessity. For if one may enjoin, the other may retort by injunction, 
and thus the parties be without remedy ; being liable to a process for contempt 
in one, if they dare to proceed in the other. Neither can one take property 
from the custody of the other by replevin, or any other process, for this would 
produce a conflict extremely embarrassing to the administration of justice.' 

"In Brown v. Clarke, (4 Howard, 4,) the court say, 'In cases of conflicting 
executions issued out of the federal and state courts, a priority is given to that 
under which there is an actual seizure of the property first.' 

" In Hagan v. Lucas, (10 Peters, 403,) it is said, ' Had the property remained 
in the possession of the sheriff, under the first levy, it is clear the marshal could 
not have taken it in execution ; for the property could not be subject to two 
jurisdictions at the same time. The first levy, whether it were made under the 
federal or state authority, withdraws the property from the reach of the process 
of the other. Under the state jurisdiction, a sheriff having execution in his 
hands, ma}- lev}- on the same goods ; and where there is no priority on the sale 
of the goods, the proceeds should be applied in proportion to the sums named 
in the executions ; and where a sheriff has made a levy, and afterwards receives 
executions against the same defendant, he may appropriate any surplus that 
shall remain after satisfying the first levy, by the order of the court. But the 
same rule does not govern where the executions, as in the present case, issue 
from different jurisdictions. The marshal may apply moneys collected under 
several executions, the same as the sheriff. But this cannot be done as between 
the marshal and the sheriff. A most injurious conflict of jurisdiction would be 
likely often to arise between the federal and the state courts, if the final process 
of the one could be levied on property which had been taken by the process of 
the other. The marshal or the sheriff, as the case may be, by a levy, acquires a 
special property in the goods, and may maintain an action for them. But if the 
same goods may be taken in execution at the same time by the marshal and the 
sheriff, does this special property vest in the one or the other, or both of them ? 
No such case can exist. Property once levied on remains in the custody of the 
law, and it is not liable to be taken bv another execution, in the hands of a dif- 

29 



226 THE SCIENCE OF GOVERNMENT. 

reach the person or thing, upon or by which it can only 
be accomplished. If one sovereignty has in its actual 
custody by process, or other rightful authority, any person 
or thing, the other sovereignty cannot at the same time 
have the actual custody of the same person or thing. 
The two sovereignties which compose our system, like 
the planets, have similar orbits, but not the same. Except 
an occasional diminution or withdrawal of the subject- 
matter of power, or a withdrawal of the material upon 

ferent officer, and especially by an officer acting under a different juris- 
diction.' 

"In the case, Ex parte Dorr, (3 Howard, 105,) the language of the court is 
decisive : ' Neither this nor any other court of the United States, or judge 
thereof, can issue a habeas corpus to bring up a prisoner, who is in custody 
under a sentence or execution of a state court, for any other purpose than to 
be used as a witness. And it is immaterial whether the imprisonment be under 
civil or criminal process. As the law now stands, an individual who may be in- 
dicted in a circuit court for treason against the United States, is beyond the 
power of federal courts and judges, if he be in custody under the authority of 
a state. Dorr is in confinement under the sentence of the supreme court of 
Rhode Island, consequently this court has no power to issue a habeas corpus to 
bring him before it.' 

" Burge, in his treatise upon the conflict of laws, referring to the civil law for 
his authority, says — ' It is a fundamental principle essential to the sovereignty 
of every independent state, that no municipal law, whatever be its nature or 
object, should, proprio vigore, extend beyond the limits of that state by which 
it has been established. The limits of its operation are those of the authority 
by which it is imposed.' 

" Cases in abundance, decided by state courts, as well as cases decided by 
the courts of the United States, may be cited in consonance with the views 
which are here presented. The question whether criminal process is para- 
mount to civil, as already stated, does not and cannot arise, in discussing the 
questions proposed. State them in any and in every aspect in which they can 
be stated, and the result is a question of sovereignty. It is, whether the com- 
monwealth of Massachusetts can legally, by force, put down the constitution, 
the laws, the judiciary of the United States. I have no hesitancy in saying it 
cannot. If the marshal of the United States thinks fit to resist any and every 
forcible effort which may be made, if any shall be, to divest him of his custody, 
even although he hold only the fugitive warrant, until he shall be directed to 
surrender by some judicial tribunal having jurisdiction in the matter, no state 
process can be of any avail to shield or protect him who shall thus assail the 
marshal, and, through him, the sovereignty whose process he holds." 



THE SCIENCE OF GOVERNMENT. 227 

which power would otherwise act, I do not discover any 
inadequacy or incompleteness, or cause of conflict, in the 
great outlines of our complex system. The legislative 
departments of the federal and of the several state gov- 
ernments, have been considered. 

I proceed to make some suggestions upon the judicial 
department. Three things are essential to its existence, 
as a competent and beneficial department. Its powers 
must be commensurate, coextensive with the power of 
the sovereignty of which it is a part. If its action be 
confined only to a portion of the matters to which the 
legislative and executive departments extend, the system 
must be incomplete, and inadequate to its purpose. In 
this respect, no defect appears ; the several departments, 
as they are constituted in our constitutions, have the 
required extent of power. Another essential element of 
the judicial department is, an independence of popular 
caprice, independence of power, public or private, except 
such as is prescribed by the law of its creation. It has 
generally been supposed that this can be attained by con- 
ferring upon the most elevated judicial officers perma- 
nence of place, with an ample provision for their respecta- 
ble and comfortable support. In accordance with this 
view, judges generally, heretofore, have held their stations 
limited in duration by their fidelity and good conduct. 
The compensation has, in most instances, -been inadequate 
to answer the reasonable expectation of those most suited, 
from ability and from study, to administer justice with 
an even hand, without fear, favor, affection, or the hope 
of reward. The third element, without which the judi- 
ciary must become a reproach, is, the integrity of those 
intrusted with its important and responsible duties. This 
can ordinarily be attained by selecting learned and emi- 
nent individuals, conferring upon them permanence of 



228 THE SCIENCE OF GOVERNMENT. 

place, and an ample and full compensation, which will 
enable them to provide for themselves and their families 
a respectable position in society. The judicial depart- 
ment of the United States is coextensive in power with 
the jurisdiction of the sovereignty of which it is a com- 
ponent branch. The constitution of the United States 
provides, that "the judicial power of the United States 
shall be vested in one supreme court, and in such inferior 
courts as the congress may from time to time ordain and 
establish. The judges both of the supreme and inferior 
courts, shall hold their offices during good behavior, and 
shall, at stated times, receive for their services a compen- 
sation, which shall not be diminished during their con- 
tinuance in office." Under this provision, the supreme 
court of the United States, circuit courts, and district 
courts, have been established, the general construction of 
which has been given in a previous lecture. The provi- 
sion recited relates to the tribunals, the machinery, by 
which the judicial power of the government is to be exe- 
cuted. The extent and subject-matter of the judicial 
power is defined in the constitution in these words : " The 
judicial power shall extend to all cases, in law and equity, 
arising under this constitution, the laws of the United 
States, and treaties made, or which shall be made under 
their authority ; to all cases affecting ambassadors, other 
public ministers and consuls; to all cases of admiralty 
and maritime jurisdiction ; to controversies to which the 
United States shall be a party ; to controversies between 
two or more states, between a state and a citizen of 
another state, between citizens of different states, between 
citizens of the same state claiming lands under grants of 
different states, and between a state or the citizens 
thereof and foreign states, citizens, or subjects. From the 
clause recited, it appears that the judicial power of the 



THE SCIENCE OF GOVERNMENT. 229 

United States extends to all the matters therein enume- 
rated • consequently the judicial power of the United 
States, in relation to any of the subjects upon which it 
may act, whenever it is exercised, must be and is final 
and conclusive. If it extends to a particular matter or 
case, and its action thereupon or therein may be reviewed, 
examined, or controlled by another sovereignty, or by 
the action of any other department, the power is value- 
less, and the United States would be deprived of self-pro- 
tection, and would be unable to execute its trusts. 
Although the judicial power of the United States, in all 
matters to which it extends, is and must be final and con- 
clusive, it does not follow that the courts of the several 
states may not, in the first instance, in some cases, act 
upon the same matters, unless, from the nature of the 
case, its jurisdiction is excluded upon the ground that 
the matter did not arise within the local jurisdiction of 
any state. A citizen of one state may institute a suit 
against a citizen of another state, in a state court, and 
unless it be transferred under a law of the United States, 
as in some instances it may be, the state court has juris- 
diction to proceed, notwithstanding the judicial power of 
the United States, may, under its constitution, extend to 
such case. An ambassador, although entitled to the pro- 
tection of the United States and of its courts, may volun- 
tarily, if he will, resort to a state court for redress of any 
wrong done to him. In relation to some other cases 
named in the clause, the jurisdiction of the judicial power 
of the United States is exclusive, from the nature of the 
subjectrmatter. Causes of admiralty and maritime juris- 
diction arising upon the high seas, and without the ter- 
ritorial limits of a state, must be instituted in the courts 
of the United States, if the party instituting a proceed- 
ing wishes to obtain such redress as courts of admiralty 
alone are competent to afford. In relation to some of the 



230 THE SCIENCE OF GOVERNMENT. 

cases enumerated, (in the clause recited,) the supreme 
court of the United States has original, in others it has 
an appellate, or supervisory jurisdiction, from and over 
other courts of the United States. In some of the cases 
which may arise coming within the subjects enumerated, 
in courts of a state, provision is made by the laws of the 
United States, to transfer them to a court of the United 
States, before any hearing upon the merits shall have 
been had, or after a hearing in a state court, to remove 
them by writ of error to the supreme court of the United 
States. It is not necessary, and would not be useful, for 
me to exhibit these matters in detail, with their limita- 
tions, or to present the course of proceeding. The result 
is, that individuals having rights growing out of the mat- 
ters enumerated, by pursuing the course prescribed by 
law, may have them finally and conclusively adjudicated 
by the courts of the United States, without review or 
examination elsewhere. 

The provision to which reference has been made ex- 
hibits the character of our system, and may well be 
resorted to as its exponent. It exhibits an intention to 
accomplish several important purposes. First. The sove- 
reignty of the United States depends for its security not 
upon state authority or state courts, but upon itself, upon 
its own action. The clause under consideration says, the 
judicial power shall extend to all cases arising under the 
constitution, under the laws of the United States, and 
to cases in which the United States may be a party. It 
is a general principle of law applicable to every system 
of government, that it is and shall be the interpreter of 
its own constitution, of its own law, and of the benefits 
resulting from or conceded by its institutions. The fede- 
ral government, within its limit, within its rightful juris- 
diction, knows no other government, submits to no other 
power. In accordance with this general principle, it is 



THE SCIENCE OF GOVERNMENT. 231 

intrusted with the keeping of its own supremacy, with 
the protection and assertion of all rights which may arise 
or exist under its constitution and laws, and also of the 
rights which the United States may have as a party. 
Another purpose disclosed, is connected with the foreign 
policy and relations of the country. All matters grow- 
ing out of or appertaining to treaties, ambassadors, or 
other public ministers, are within the judicial power of 
the United States, as already stated ; and thereby uni- 
formity and certainty in these matters are obtained, and 
the country is protected from interposition or inade- 
quacy, or want of faith on the part of any state autho- 
rity. A third intent is, that the law of nations and 
rights dependent thereupon may be respected and ad- 
ministered by the courts of the government, which is 
charged with an adherence to and maintenance of such 
rights, by itself and by its citizens, and by the residents 
of the United States. 

A fourth and important purpose is manifested in the 
provision which extends the jurisdiction of the judicial 
department of the United States to controversies which 
may arise between the several states as sovereignties. 
If the rights of boundary, or other rights which may be 
contested between two states were, to be left to the 
several states interested for determination, they might 
be induced to resort to force, and our system would end. 
Or if such rights were to be determined by the courts of 
either of the states litigating with each other, or by the 
courts of a disinterested neighboring state, jealousy, con- 
fusion, and ill feeling would arise. As these matters are 
deferred to the judiciary of the union, the several states 
stand as equals, and their dignity and self-respect is not 
impaired. Many such cases have arisen under our sys- 
tem ; and although occasionally storms and clouds have 
appeared in the distance, sober second thought has pre- 



232 THE SCIENCE OF GOVERNMENT. 

vailed, and the mandates of the supreme court of the 
United States have thus far been carried into effect with- 
out collision or rupture between the states, or between 
them and the union. A similar purpose is found in the 
provision which authorizes citizens of different states, or 
citizens of the same state claiming grants of land under 
different states, to litigate their rights in the courts of 
the United States. Another purpose exhibited in the 
clause is, a desire to prevent a state or its citizens from 
doing injustice to a foreign state, or to the citizens or 
subjects of a foreign state. 

Soon after the adoption of the constitution, it was 
doubted whether a state could be sued by a citizen of 
another state. The right was denied by many persons 
of ability ; and the language of the constitution is such, 
regarding its subject-matter, (a sovereign state,) that 
doubts in this respect might well and fairly have been 
entertained. The language is, the judicial power shall 
extend to controversies between a state and citizens of 
another state. Nothing is said as to the institution of a 
controversy or suit by a state ; so that the language, in its 
natural and broad import, applies to all controversies be- 
tween a state and the citizens of another state. It was 
conceded by those who took a narrow view, that a state 
might commence a suit against a citizen of another state, 
but it was assumed that it could not be sued by such 
citizen. This assumption or doubt was the result of state 
dignity and state pride. In a case instituted against the 
state of Georgia, at an early stage of our constitu- 
tional history, a majority of the supreme court, 
adopting the ordinary and natural import of the words, 
without reference to the sovereign authority to and 
upon which it applied, held, that a state might be sued 
by a citizen of another state. This decision, generally, 
so far as I am aware, has been approved by the legal 



THE SCIENCE OF GOVERNMENT. 233 

mind. To obviate the supposed inconvenience and 
enormity of this decision, and to avoid embarrassments 
which it was supposed might arise, the constitution was 
amended. In an amendment of the constitution of the 
United States upon this subject, it is provided, " the judi- 
cial power of the United States shall not be construed to 
extend to any suit in law or equity commenced or pro- 
secuted against one of the United States by citizens of 
another state, or by citizens or subjects of any foreign 
state. This amendment prohibits the institution of legal 
proceedings against a state, by a citizen of another state. 
If a state institutes a suit against a citizen of another 
state, such citizen, notwithstanding the amendment, may 
carry the case, if decided against him, to the supreme 
court of the United States for final adjudication. As the 
constitution originally existed, a foreign state or sove- 
reignty having a legal claim against any one of the 
several states, arising upon bond or other obligation of a 
state for the payment of money or for the performance 
of a contract, not in its nature political, might institute 
legal proceedings against such state, in the supreme court 
of the United States. The amendment of the constitu- 
tion prohibiting the institution of a suit against a state 
by a citizen of another state, or by a citizen or subject of 
a foreign state, does not reach the case of a suit by a 
foreign sovereignty. If a state by contract becomes in- 
debted to a foreign government or sovereignty, I do not 
perceive any reason upon which to say such foreign gov- 
ernment cannot assert its rights against such state by 
the institution of legal proceedings. The amendment, 
through design or inadvertence, does not extend to or 
exclude such case ; no such suit has been attempted, and 
probably may not be. 

Immediately after the adoption of the constitution, in 
obedience to its requirement, congress provided for the 

30 



234 THE SCIENCE OF GOVERNMENT. 

organization of a supreme court and for the establish- 
ment of inferior courts, distributing the jurisdiction, so 
as to make ample provision for carrying into effect the 
design and powers of the constitution. In some instances, 
state officers have voluntarily, under laws of the United 
States, aided in the execution of such laws. State officers 
cannot be required to perform any duty, except such as 
may be conferred upon them by state legislation. Con- 
gress cannot vest any portion of the judicial power of 
the United States, except in courts ordained and estab- 
lished by itself. By an act passed in 1789, commonly 
known as the judiciary act, the judges of the courts of 
the United States were vested with ample means to exer- 
cise the jurisdiction conferred upon them. The existence 
of two judicial departments exercising jurisdiction over 
the same territory and persons, may appear inconsistent 
or incompatible with a natural and regular system. The 
same answer occurs which has been applied, and is appli- 
cable to the existence of two legislative departments, 
acting under different sovereignties and circumstances, 
for different purposes. 

As has been suggested, the judicial department of the 
United States has been constructed so as to secure certain 
important and national objects, which are not merely 
local or exclusively applicable to the condition or exi- 
gencies of a particular state. It is not difficult to under- 
stand an arrangement by which one court may be au- 
thorized to determine a particular class of cases or con- 
troversies, and another court be empowered to adjudicate 
in relation to another and distinct class of cases. Upon 
the same principle, the judiciary of the United States 
may be intrusted with the original and exclusive, or the 
final and conclusive jurisdiction of certain matters, at the 
same time that other matters are deferred to the control 
and disposition of a state judiciary. The science of law, 



THE SCIENCE OF GOVERNMENT. 235 

the principles of right and wrong, independent of express 
regulation or statute provision, is and are the same in 
every free or constitutional government, and in every 
intelligent judiciary. To secure this uniformity of science, 
of right and wrong, in and through the relations of the 
citizens of the United States, to the system of govern- 
ment which they have adopted, the laws of the United 
States have made ample provision. The judiciary act, to 
which reference has been made, provides, that * the laws 
of the several states, except where the constitution, trea- 
ties, or statutes of the United States shall otherwise 
require or provide, shall be regarded as rules of decision, 
in trials at common law in courts of the United States, in 
cases where they apply." This provision relates to suits 
and controversies arising at common law, in respect to 
which the states may rightfully legislate within certain 
limits. A contract may be made by citizens of Massa- 
chusetts, in conformity with the laws, and to be performed 
within the territory of the commonwealth. Such con- 
tract, so far as the rights which result or flow therefrom, 
is to be determined upon the same principles, when dis- 
cussed in the courts of the United States, as when 
discussed in a state court. More than this, a statute of 
any one state rightfully and constitutionally enacted, 
means in every other state of the union, and in the courts 
of the United States the same ; and has the same force 
and effect as the highest judicial tribunal of the state, in 
which it may have been enacted, may determine. In 
other words, the law of a particular sovereignty or gov- 
ernment, must be determined by such sovereignty or 
government. In one case which arose before the supreme 
court of the United States, a state statute was the subject 
of construction ; the court, in pursuance of the provision 
in the laws of the United States to which reference has 
been made, and in harmony with admitted principles of 



236 THE SCIENCE OF GOVERNMENT. 

jurisprudence, adopted, as the law of the court, a con- 
struction which the supreme court of a state had given 
of its own statute. 

Subsequently the same statute was presented in another 
case before the supreme court of the United States, and 
in the meantime, the same statute had been presented to 
the state court a second time, for construction, and its 
former opinion was rejected as erroneous, and a new and 
different construction was adopted as the true import and 
meaning of the statute ; which last construction was 
adopted by the supreme court of the United States as 
the true exposition, in deference to the judgment of the 
state court. Other cases arise which are controlled by 
the constitution, by the treaties, or by the laws of the 
United States ; these are to be decided at all times and 
in all courts and in every court in the country, in which 
they may be discussed, in conformity with the opinion of 
the supreme court of the United States, if it can be 
ascertained ; and if no opinion has been given by that 
court, they are to be determined upon principles which 
it may be supposed that court would adopt, if the ques- 
tion presented had arisen before it. Another class of 
cases may arise, dependent for determination upon gene- 
ral principles of jurisprudence as understood by jurists, 
judges, and legal writers. In such cases the judiciary of 
the United States will be governed by its own intelli- 
gence and knowledge of legal principle, and will defer 
only to the opinions or judgments of state courts, as the 
opinions of eminent and learned men, entitled to such 
respect and consideration, and only such, as their reason- 
ing may produce upon other minds. The judicial depart- 
ment of the United States extends also to cases in equity, 
which is a branch or department of legal science, of juris- 
prudence not dependent upon any written law, or upon 
any arbitrary, fixed principles, which do not admit of any 



THE SCIENCE OF GOVERNMENT. 237 

diminution or abatement. Equity, however, cannot do 
away with or control positive written law, but it may 
restrain and prohibit, under some circumstances, the appli- 
cation of written law to a particular case. This branch 
of law has been the subject of much reproach, which it 
is not my province to repel, except so far as an illustra- 
tion of its operation may have such effect. 

It may be essential to the rights of an individual to 
prove a certain state of facts, or the existence or execu- 
tion of a paper, of which he has at law no means of 
proof, no evidence at his hand ; these facts, or the execu- 
tion of the paper are known, to his adversary, to the party 
having an interest to conceal the facts or to suppress the 
paper; the individual wishing the proof may, through 
the instrumentality and aid of a court of equity, resort 
to the party opposed, make an appeal to his conscience, 
and compel him upon oath to answer. In this way in- 
justice has been prevented, and right has prevailed in 
many cases. Individuals may enter into a written con- 
tract, which through inadvertence and mistake may con- 
tain a provision which neither party designed to have in- 
serted ; upon proof of such mutual mistake, a court of 
equity will reform the instrument, and make it what the 
parties thereto originally designed. From this brief state- 
ment of the character of equity as a part of our system 
of jurisprudence, it will be perceived that the courts of 
the United States, in adjudicating upon cases in equity, 
must resort to the science for their guide, and not to state 
courts, some of which have, and some have not, equity 
jurisdiction. Courts of equity do not afford relief, in 
cases in which the jurisdiction of the ordinary courts of 
common law is adequate to attain the ends of justice by 
affording ample remedy. The judiciary of the United 
States, in equity cases, proceeds in conformity with the 
principles of equity, as known to, and as administered in, 



238 THE SCIENCE OF GOVERNMENT. 

courts of equity ; and as there is no court of equity to 
which the supreme court of the United States can resort, 
as an authoritative tribunal, and as it would be indeco- 
rous to resort to a court of any particular state, in pre- 
ference to, and in exclusion of, the court of any other 
state, equally respectable in the theory of our system, 
the principles of the English court of equity have been 
adopted, except so far as those principles may be inappli- 
cable to, or inconsistent with, our institutions. The judi- 
ciary of the United States extends to all cases of admi- 
ralty and maritime jurisdiction. The state courts do not 
act as courts of admiralty, and the courts of the United 
States, in exercising its admiralty and maritime jurisdic- 
tion, look to the courts of admiralty of other countries 
and to the law of nations, for the principles by which 
their action and adjudications are governed, unless re- 
strained by some statute. 

The imposition of this jurisdiction upon the courts of 
the federal sovereignty, shows the sagacity of those who 
framed our system, and exhibits the competency of the 
system to answer the purpose for which the union was 
formed. Cases of admiralty and maritime jurisdiction 
arise frequently in time of war, and out of matters de- 
pendent entirely upon international law, or upon the 
force and effect of treaties. These cannot safely be in- 
trusted to thirty-one or more different jurisdictions, inde- 
pendent of each other, occupying a continuous territory, 
although composed of people of similar interests and 
habits, modified slightly by locality or climate. The 
judgments of courts, proceeding according to the law of 
nations, having jurisdiction of the subject-matter to the 
extent of the jurisdiction actually exercised, are binding, 
and to be regarded upon and by all other courts. It can- 
not, therefore, fail to be perceived, that such cases should 
have been as they have been, conferred upon the federal 
judiciary. 



THE SCIENCE OF GOVERNMENT. 239 

It is frequently said, that the United States have no com- 
mon law. In one sense, the remark is undoubtedly true. 
The several states may have a common law, composed 
of usage and custom, peculiar to the state in which it 
exists. It cannot, therefore, be said that the judiciary of 
the United States shall in all cases adopt the common 
law of any particular state, to the exclusion of that of 
other states. The judiciary of the United States, how- 
ever, may and it will adopt, when not controlled by any 
constitution, treaty, or statute, those common law princi- 
ples, which may be a result of, or deduction from, the 
highest attainable point of human reason, chastened and 
controlled by integrity, by principles of justice and of 
right. 

The judicial department of the United States exhibits 
another peculiarity or incident resulting from our system, 
composed as it is of two sovereignties. The forms of 
writs, executions, and processes, in and from the courts of 
the United States, except their style, and the forms and 
modes of proceeding in suits at common law, in these 
courts, are and shall be the same in each state respective- 
ly as are used in the supreme court thereof. A provision 
to this effect was made by Congress in 1789, and applied 
only to the states which were then members of the union, 
and to the terms and mode of proceeding then used and 
existing in the state courts. 

In 1828, and subsequently, provision was made in the 
statutes of the United States for extending the regulation 
to the new states, and to conform to the changes which 
the several states in this particular had made since 1789. 
The object of this legislation is, to procure uniformity 
in the course and mode of proceeding in the national 
and state judiciary, and thereby avoid occasions for dis- 
trust or uneasiness which might otherwise occur. :i: 

* An opinion is prevalent, more or less extensive, among the legal profession, 



240 THE SCIENCE OF GOVERNMENT. 

The judges of the supreme court of the United States 
hold the circuit courts in the several states, and thus 
have an opportunity to learn the practical effect and 
working of the law and of the system. They become 
familiar with the business operations of the community, 
with the habits and thoughts of the people upon which 
the law operates, and for whose protection it is estab- 
lished. By means of this observation and intercourse, 
the judges acquire a comprehensive knowledge of men 



that a party who institutes a suit in the courts of the United States, may have 
greater right than he can by instituting his suit in a state court. This is errone- 
ous, and has no foundation. It is a general and undoubted principle of juris- 
prudence, that a party who institutes a suit in a foreign country, must be con- 
tent to receive such law and such remedy as the courts of the country in which 
he litigates may be able or may be disposed to extend to him. The reason of 
which is, that the party in the case supposed, proceeds not as matter of right, 
but upon the comity of the country whose courts he may enter. This principle 
cannot be applied to citizens of the several states of the American union. 
A citizen of one state who has a claim against a citizen of another, and resorts 
to the state court of the state of which the latter is a citizen or a resident, does 
so as matter of right, under the constitution of the United States, and not as 
matter of grace ; he is, therefore, entitled to the same rights as he might have, 
if he had instituted his suit in a court of the United States. The several state 
courts are bound by the constitution and laws of the United States to the 
same extent as the courts of the United States are ; and if a suitor has any 
peculiar protection, immunity, or right under the constitution, treaties, or laws 
of the United States, a state court is bound to give effect thereto. This is ap- 
plicable to cases in which a state court may exercise jurisdiction, and not of 
course to admiralty and maritime cases, or to other cases in which the state 
courts have no power to afford the remedy peculiar to courts of admiralty, or 
to some other court exercising a peculiar mode of remedy. It is also a general 
principle of jurisprudence, that the force and effect of a contract is to be ascer- 
tained from and by the law of the country in which it may have been made, 
and if legal there, is legal in every other country. A contract, however, which 
may be legal where made, will not, in all cases, be enforced in every other 
country. A promissory note may be legally made in any one of the several 
states in which slavery is allowed, as and in payment of the purchase-money for a 
slave. If such note should be put in suit in any of the courts of common law of 
England, the court might well, and probably would, say, it is against good 
morals, and a prejudice to our institutions to enforce such contract, and there- 
fore and thereupon refuse to enforce it. If such note should be put in suit in 
the state court of a state in this union in which slavery is not allowed, no such 
answer or refusal to enforce the contract could be made. 



THE SCIENCE OF GOVERNMENT. 241 

and things, which is essential to a proper discharge of 
the trusts confided to them, which cannot be acquired 
from books. The judiciary of the United States is clothed 
with ample power to aid and uphold the government in 
the collection of debts due to it. It is provided by law, 
u that all writs of execution upon any judgment obtained 
for the use of the United States in any of the courts of 
the United States in one state, may run and be executed 
in any other state, or in any of the territories of the 
United States, but shall be issued from and made return- 
able to the court in which the judgment was obtained. It 
has also very extensive power and authority, which may be 
used in favor of individual, of private right. Process for 
witnesses who may be required to attend a court of the 
United States in any district thereof, may run into any 
other district, when their attendance is required in crimi- 
nal causes. In civil causes, the attendance of witnesses 
who do not reside at a greater distance than one hundred 
miles from the place of trial may be compelled, although 
they reside in a state or district other than that in which 
a trial is to be had. The judiciary of the United States 
extends to all crimes and offences against the constitu- 
tion, the treaties, or laws of the United States ; to offences 
which may occur upon territory, over which the United 
States have exclusive jurisdiction; to offences on the 
high seas, without the local limits of a state, which may 
be committed on board an American ship ; to offences 
against the law of nations, committed by its citizens, or 
by persons rightfully brought within the United States. 
The constitutional provisions, in relation to offences 
known to the laws of the United States, are well calcu- 
lated to insure civil liberty, and to preserve inviolate the 
humanity and rights which is and are due to those 
accused. The constitution of the United States provides, 
tliiit "the privilege of the writ of habeas corpus shall not 

31 



242 THE SCIENCE OF GOVERNMENT. 

be suspended, unless when, in cases of rebellion or inva- 
sion, the public safety may require it. The trial of all 
crimes, except in cases of impeachment, shall be by jury, 
and such trial shall be held in the state where the said 
crimes shall have been committed ; but when not com- 
mitted within any state, the trial shall be at such place or 
places as the congress may by law have directed. The 
power and danger of oppression on the part of the gov- 
ernment, in relation to political offences, is restrained and 
prevented. In arbitrary or absolute governments, an 
accusation of treason is an easy and dangerous method 
of suppressing inquiry into the conduct of government, 
and of imposing upon those suspected of hostility to its 
measures, unusual and unwarrantable penalties. In our 
system, this is avoided. Treason is defined by the con- 
stitution, which says, treason against the United States 
shall consist only in levying war against them, or in 
adhering to their enemies, giving them aid and comfort. 
No person shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or on 
confession in open court. The congress shall have power 
to declare the punishment of treason, but no attainder of 
treason shall work corruption of blood or forfeiture, ex- 
cept during the life of the person attainted. This provi- 
sion results from an enlarged comprehension of the true 
character and purpose of civil liberty, and an unwavering 
attachment to its support and regulation by law. To 
extend and sustain the enlightened policy exhibited in 
the constitution by the provisions referred to, additional 
provisions were adopted by amendment. 

In the articles of amendment it is said, " the right of 
the people to be secure in their persons, houses, papers, 
and effects against unreasonable searches and seizures, 
shall not be violated." Several other similar provisions, 
designed to uphold, under all circumstances, security of 



THE SCIENCE OF GOVEKNMENT. 243 

person and personal rights, are also inserted. The legis- 
lation of congress in the establishment of the federal 
judiciary has clothed it with every power and facility, 
which can be required to carry into effect the principles 
of the constitution. The character of the state judiciary 
may be inferred from that of the federal government. 
The federal judiciary is for national purposes, for pur- 
poses arising from and connected with the union. The 
state judiciary is for local, for state purposes. Each pur- 
sues its several and rightful jurisdiction, independent of 
the other, as a means or instrument by which the trusts 
of the sovereignty to which it belongs are ascertained, 
defined, and made available to the security and progress 
of society. The state judiciary has power commensurate 
with the jurisdiction of the state. It pronounces judg- 
ment upon the force and effect of the state constitution, 
and of the laws of the state, written and unwritten, 
including its local usages and customs, and applies them 
to the rights of the state government, and to the rights, 
duties, and obligations of its citizens, limited only in these 
particulars, by the restrictions contained in the constitu- 
tion of the United States, designed to uphold the union. 
It has a supervisory power and control over municipal 
corporations and officers, and others intrusted with public 
authority ; and generally it determines the rights, public 
and private, of the community. The judicial department 
of the state government operates extensively and con- 
stantly upon all the relations of life. It is eminently the 
department to which the citizen recurs for the protection 
and enjoyment of his civil rights. The rights of persons, 
character, and property, the incidents resulting from con- 
tract, are generally ascertained and enforced by the state 
judiciary. They are exclusively and conclusively deter- 
mined by this department in all cases, and matters not 



244 THE SCIENCE OF GOVERNMENT. 

conferred upon the federal government for the purposes 
of the union. The execution of wills, the acquisition of 
land, the mode in which the title to personal estate may 
be acquired or lost, are matters of state legislation, and 
whenever they may be the subject of judicial inquiry it is 
had, ordinarily and generally, in a state court. The judicial 
department of the several states, in its power and pur- 
pose, is the same substantially in every state. Its organ- 
ization and construction is not uniform, each state adopt- 
ing such distribution of jurisdiction and mode of proceed- 
ing as may be convenient or satisfactory to itself. In 
every state, there is a tribunal which exercises the final 
control over all other state courts and judicial officers. 
This court of last resort is in some of the states designa- 
ted the court of errors, or the court of appeals ; in other 
states it is designated the supreme, or the superior court. 
In some of the states, the highest judicial tribunal of the 
states passes upon questions of law, originating or arising 
in courts of an inferior jurisdiction, and has no jury in 
attendance as a part of its organization. In other states, 
the highest court passes upon questions of law, and also 
through the aid of a jury ascertains and passes upon the 
facts. All crimes and offences against the sovereignty or 
laws of a state, are passed upon and punished by the state 
judiciary. The judicial officers of the several states, 
especially the judges of the higher courts, have generally 
heretofore held their offices during good behavior, and 
by appointment of the executive* The legislative and 
executive departments have a right to call upon the 
judiciary for its opinion upon important questions of 
public concernment, and which do not relate to the pri- 



* In the opinion of the writer no other tenure of office, or mode of appoint- 
ment, is judicious or safe. 



THE SCIENCE OF GOVERNMENT. 245 

Tate interests of individuals litigating before the judicial 
tribunals* In the several states the trial by jury con- 
stitutes a part of the judicial department, and the parties 
who have recourse to this department of the government 
for the ascertainment and assertion of their rights, gene- 
rally, are entitled to the interposition of a jury, which, 
under instructions from the court, determine the question 
or questions of fact, which may be in contestation 
between the parties.^ The mode of selecting a jury is 
prescribed by law. The selection is accomplished through 
the instrumentality of public officers, under regulations 
designed to secure impartiality in the choice. In crim- 
inal and in civil causes, those whose rights are to be 
passed upon, may, upon showing legal cause of objection, 
have one or more of the jury set aside. In some criminal 
causes the party accused may set aside a prescribed num- 
ber of the jury, without assigning any reason or cause 
of objection. This immunity is conceded upon the 
ground that every party has a right to a fair and impar- 
tial trial, and to some extent, as a matter of humanity, is 
allowed to select his peers, by whom his acts are to be 
passed upon. 

The courts of a state are courts of general jurisdiction, 
and the presumption and intendment, in all cases before 
them, is in favor of their jurisdiction; and this intend- 
ment prevails until the contrary or a want of jurisdiction 



* This is inexpedient ; the government should rely for counsel upon all legal 
questions upon its attorney-general, or other law officer. 

t Many politicians and ?ome practitioners at the bar, have contended that 
the jury in criminal cases, are and should be judges of the law so well as of the 
&Ct This is not so, and never can be, with safety to the community. A 
learned, educated individual, whose life has been devoted from early youth to 
mature manhood, to the acquisition of legal knowledge, is more competent to 
unfold the science of law than any man not so educated can be. 



246 THE SCIENCE OF GOVERNMENT. 

is shown. The courts of the United States are courts of 
limited, although not inferior jurisdiction, and their juris- 
diction must be shown, must appear of record. The state 
judiciary has the exclusive power of determination as to 
the import and effect of its constitution, as has already 
been stated, and must say whether a state statute is or is 
not in conformity with the state constitution ; and no 
other department or tribunal can so say, or rightfully 
pass upon the question. 

I have presented a general outline of the judicial de- 
partments of the federal and of the state sovereignty. 
It has not been my purpose to discuss any particular 
branch of jurisprudence, or to exhibit in detail the entire 
machinery of the departments considered. My intent is, 
to present for your consideration certain prominent re- 
sults or deductions, which may be made from an analysis 
of the departments to which reference has been made. 
One prominent feature consists in a distribution of juris- 
diction. The courts of the United States and of the sev- 
eral states, are classified ; each having its particular class 
of cases, or department of jurisdiction. Each sovereignty, 
the federal and the state, having one court, exercising a 
general supervision and control over all other courts of 
the same sovereignty. Another feature consists in a di- 
vision of power, which is two-fold, one derived from a divi- 
sion of government, from the establishment of two sove- 
reignties ; the other from the creation and division of de- 
partments. This division of department is seen in the 
judiciary, by the establishment of judges to determine 
the law, of a jury to determine the fact. The judicial 
department, as I have endeavored to present it, shows 
the same theory, the same system, the same science of 
government, which are shown in the legislative depart- 
ment. This theory, this system, this science, consists in 



THE SCIENCE OF GOVERNMENT. 247 

the establishment of internal political and social institu- 
tions ; of a distribution and division of power ; in the 
cooperation of the people in the management of these 
institutions, and in the execution of the trusts confided 
to government. 



LECTURE IX. 



REVENUE.— TARIFF.— FREE TRADE.— PUBLIC LANDS —TERRITORIAL GOVERNMENTS.— 
THE ADMISSION OF NEW STATES. — THE INDIAN TRIBE3. 



The system of government which exists in the United 
States, is invested with every supposed essential capacity. 
A most important power is found in the right of impos- 
ing taxes or duties for its support, and for the execution 
of all the powers with which it is intrusted. The power 
of taxation is difficult, and often dangerous, to the gov- 
ernment by which it is applied. The powers of govern- 
ment when exercised imperceptibly, or upon matters 
which do not operate upon the avocations of the citizen, 
so as to impede his pursuits or plans, are not the subject 
of general discussion. Men are accustomed to contribute 
indirectly, from their private resources, to many purposes 
designed to promote the improvement of society and of 
individuals, sums of money which they would not expend 
for the same purpose directly. Taking advantage of this 
peculiarity of the human mind, fairs and similar schemes, 
in themselves of no value, are resorted to as the means 
of obtaining money for purposes which are worthy and 
important. Government and political associations are ac- 
customed to avail of this peculiarity, so far as possible, in 
the selection of means, by which to obtain an adequate 
revenue. They resort, as a consequence, to indirect tax- 



250 THE SCIENCE OF GOVERNMENT. 

ation, whenever such method can be made successful. In 
this respect, the federal government has ample power, by 
recourse to direct and indirect taxation. 

The constitution of the United States provides, that 
ci the congress shall have power to lay and collect taxes, 
duties, imposts, and excises, to pay the debts and provide 
for the common defence and general welfare of the United 
States ; but all duties, imposts, and excises, shall be uni- 
form throughout the United States." This clause confers 
ample power for the accomplishment of the limited and 
legitimate duties of the federal sovereignty. It has, how- 
ever, been the subject and the occasion of different and 
opposing political opinions. On one side, the words which 
authorize congress to provide for the common welfare of 
the United States, have been relied upon as conferring 
an almost unlimited power. Under a supposed protec- 
tion derived from these words, considered without refer- 
ence to the connection in which they are found, schemes of 
enlarged internal improvement have been invented, and, 
in some instances, have succeeded. Some of those who 
have advocated such schemes, seem to have forgotten for 
the moment, that the federal sovereignty is one of limited 
powers, designed and conferred for certain denned pur- 
poses. They have also disregarded the well settled prin- 
ciples of construction, which must be applied to an ex- 
press grant for a specific purpose. In such case, ordina- 
rily, general words which may be found are not designed 
to enlarge the grant, or extend it to any purpose not im- 
mediately connected with, and essential to, its subject. 
Other politicians, looking at the system, rightfully in this 
respect, as one of limited jurisdiction, have insisted upon 
a close, strict construction, forgetting the purpose of the 
system, and disregarding the rules of construction appli- 
cable to every written document. Both of these views 
are unsound and inconsistent with the true theory. The 



THE SCIENCE OF GOVERNMENT. 251 

clause to which reference has been made, so far as judi- 
cial authority and the opinion of constitutional lawyers 
are to be relied upon, is a grant of the power of taxation, 
adequate to the express grants and duties conferred and 
imposed upon the federal sovereignty ; and the general 
words used are designed to prevent a close, technical, 
rigid construction of the words used, uninfluenced by the 
purpose. The federal sovereignty has, on several occa- 
sions, resorted to direct taxation ; this has been in conse- 
quence of extraordinary demands upon the government, 
growing out of war. The people have submitted, not 
however with much grace, inasmuch as such taxation has 
always produced in the public mind disquiet, uneasiness, 
and complaint against the government. With few ex- 
ceptions, the federal government has been maintained by 
indirect taxation, by the imposition of duties upon pro- 
perty imported from foreign countries. In this way, 
every individual who uses an article of foreign growth or 
manufacture, pays ordinarily from twenty to fifty per 
cent, of the cost of the article, for the support of govern- 
ment, and in some instances a much greater per cent. 
These payments are readily made, because the purchaser 
of an article rarely enters into a computation of the ele- 
ments or details which constitute the price of an article, 
which he may require, or may choose to buy. 

The state sovereignty is also clothed with the power 
of taxation. It is, however, a limited power, which can- 
not rightfully be exercised, except so far as the purpose 
and duty of the government, fairly and reasonably ascer- 
tained from an examination of its constitution, may re- 
quire. The finances of the state government are derived 
from an imposition of taxes upon persons, property, in- 
come, and occupation. They are direct. In this respect, 
a difference exists practically in the two sovereignties. 
The influence of this difference is very great upon the 



252 THE SCIENCE OF GOVERNMENT. 

permanence of the union. If the entire sum devoted to 
the use and purpose of government by the national and 
state sovereignties, should for five or ten years be raised 
by a direct tax upon the people and their property, com- 
plaint would become common and general, which might 
produce much evil ; it most certainly would produce a 
practical economy of expenditure, which exists now only 
in theory. By indirect taxation, the citizen determines 
to gome extent how much he will pay, and is not subject 
to the annoyance and importunity of a tax collector. 
The new states submit to this mode of taxation, although 
they might feel oppressed and unwilling to contribute 
their quota of the expenditure of the national govern- 
ment, if called upon directly for the money. This diver- 
sity in the mode of taxation is of the utmost importance 
to the quiet of the community, and to the successful 
working of our system. The power of taxation is sub- 
mitted to with additional cheerfulness, derived from the 
fact that those who pay, through the instrumentality of 
their representatives and agents, determine the amount 
to be paid, and the purpose of the payment. The want 
of a voice or agency in the imposition of a tax, induced 
the destruction of some tea in the Boston harbor, and 
contributed much and mainly to the revolution which 
dissolved our dependence upon Great Britain, and gave 
to this continent the states and principles which now 
command the respect and admiration of the world. The 
subject of revenue has been the source of more vehe- 
ment opposing party political discussion, than almost 
any other matter connected with the government. The 
propriety of free trade, the principles upon which a tariff 
or regulation of duties should be established, have been 
discussed with ability, occasionally without party preju- 
dice, but more frequently for mere party. These discus- 
sions as a whole have had a beneficial influence upon the 



THE SCIENCE OF GOVERNMENT. 253 

character of our system ; they have also had an extensive 
influence upon the business and occupation of the citi- 
zens. I shall refer to them briefly, not as elements of 
party difference, but as they concern and constitute a 
part of our system of politial economy. Free trade is 
not to be received or rejected upon any absolute, arbi- 
trary, fixed principle, but its adoption or rejection is to 
be determined by various considerations. As a natural 
privilege, an individual has a right to buy and to sell, at 
such time and place as may suit himself. He who advo- 
cates free trade, starts, therefore, with this principle in his 
favor ; but it is to be remembered, that natural right is 
not necessarily and uniformly the law of society. An in- 
dividual, by going to a distance from his residence, or to 
a neighboring city or town, may be able to purchase an 
article cheaper or better, or which may be supposed to 
be better or cheaper than he can obtain of his neighbors, 
with whom he is in daily intercourse of business, and 
who are accustomed to buy of, or traffic with him ; under 
these circumstances he is disposed to help those, upon 
whom he is somewhat dependent for his own support or 
comfort ; under such circumstances he buys at home, and 
voluntarily relinquishes his natural right of free trade. 
In other words, all rights, natural and artificial, are modi- 
fied by surrounding rights and circumstances. It cannot, 
therefore, be said in relation to a nation, that it must 
adopt or reject free trade with any other nation, or with 
all nations, as a matter of course, or because such adop- 
tion or rejection may be supposed to be in accordance 
with certain fixed, well established principles of political 
economy or science. The question must be determined 
by every nation for itself, upon a consideration of its re- 
lation to other countries, upon a consideration of the in- 
terests of its citizens, as a whole, as members of a social 
community, having the same general purpose. 



254 THE SCIENCE OF GOVERNMENT. 

The regulation of duties, the tariff, has been a fruitful 
theme of discussion, has been used as an instrument by 
which to obtain political capital. Discussions upon this 
subject are useful, even when conducted by mere politi- 
cians, inasmuch as the public mind must be enlightened 
and the public judgment improved, by an examination of 
our system, or of the policy pursued for the time being 
by those in office. Erroneous and even partizan doctrines 
do not, in this country, so far as they relate to govern- 
ment, accomplish any permanent or extraordinary result. 
I speak with reference to our past history. Error, upon 
political subjects, when ojDen and exposed to be com- 
batted and resisted by reason, is corrected. The Ameri- 
can people, to a certain extent, are educated by the 
means of books, schools, newspapers, and public discus- 
sions. In addition to this, they possess a practical know- 
ledge of men and things, and of political economy, de- 
rived from their power over and participation in our sys- 
tem of government, and over those who execute its trusts. 
They are, therefore, ordinarily competent to detect error ; 
they are ever ready to uphold the truth when discovered. 

I cannot enter upon an extended discussion of the 
principles by which the imposition of duties should be 
regulated. There are certain prominent principles, which 
may be regarded as the result of political science or 
economy. Our government is limited, its power of taxa- 
tion is limited. As a consequence of these limitations, 
the first and paramount consideration in the imposition 
of duties is, an ascertainment of the sum which can right- 
fully be assessed, and which is required for a manly, eco- 
nomical, and judicious execution of the trusts of govern- 
ment. This cannot be fixed with mathematical certainty, 
but it can be approximated ; and when approximated it is 
not to be enlarged or diminished to correspond with politi- 
cal considerations of a party character, or to carry out any 



THE SCIENCE OF GOVERNMENT. 255 

favorite system of political economy which may be adopted 
by this or that individual or class. Another element to 
be regarded is, an estimate of the amount and value of 
property, and of the different kinds of property which 
may be imported. Having fixed the amount to be as- 
sessed, and the value and character of the property upon 
which it is to be assessed, the mode of distribution of 
assessment is to be determined. This determination can- 
not be had with propriety, by the adoption of an arbi- 
trary standard to be applied under all circumstances, at 
all times ; but must be attained, so as to give force and 
effect to several considerations. 

The theory of our system is, that the people are to be 
let alone, so far as they may be consistently with public 
right. They are not unnecessarily to be impeded in 
business operations, in their employment. As an inci- 
dent of the concession so made in favor of private right, 
it is the duty of the public, of the government, to avoid 
all sudden changes of policy, by which the business of 
the community may be disarranged. In the regulation 
and imposition of duties, in the assessment of taxes, it is 
not only a matter of science but of solemn duty, imposed 
upon the government, to impose them, so as to avoid a 
necessity, on the part of the citizen, suddenly to abandon 
or change his course of business. 

Another element of great import, consists in the duty 
of government, so far as it legitimately can, to guard its 
own interests and the interests of its citizens, by its legis- 
lation, against the adverse effects and influence of the 
legislation of other countries with which it has commer- 
cial relations. 

If Great Britain, or any other country with which the 
United States have intercourse, shall, by its course of 
legislation, attempt to impede or control the policy or 
welfare of the United States, or of its citizens, the federal 



256 THE SCIENCE OF GOVERNMENT. 

government, as a matter of self-protection and defence, 
should, by its legislation, so far as its limited jurisdiction 
will permit, counteract and resist the influence and effect 
of such foreign legislation, otherwise foreign inroads 
might quietly and imperceptibly be made upon our in- 
terests and institutions. Another principle, applicable to 
the imposition of duties, is derived from the character of 
the property upon which they are to be imposed. Arti- 
cles of daily use and consumption, which from such use 
may be regarded as essential to the comfort of a large 
portion of the people, usually are and should be assessed 
at a lower rate than is imposed upon articles of fancy 
or luxury, the use of which may easily be dispensed. 
It is also fit and proper to provide, incidentally, and 
so far as may be prudent, doing no injury to other 
interests, for the production and growth of the essential 
articles of consumption, within our own territory, so as to 
avoid, in time of war or other contingency, a dependence 
upon other nations. These are principles not dependent 
upon party considerations or policy, and should not be 
disregarded by those whose trusts are not of a party 
character ; by those who are required to administer the 
trusts of government for the benefit and protection of 
the entire country and its institutions. 

The federal government has in its charge the posses- 
sion and control of an extensive territory, commonly re- 
ferred to as the public lands. In relation to these, the 
government exercises the rights which appertain to it, as 
owner of the soil, and also the rights of sovereignty, po- 
litical rights. As a general principle, the government 
should not be the owner of soil, except so far as its muni- 
cipal and public duties may require such ownership. In 
other words, I mean to say, that the government cannot 
rightfully become the purchaser and owner of land, 
merely for private purposes, or for speculation. The 



THE SCIENCE OF GOVERNMENT. 257 

history of the public domain is instructive, and is worthy 
of a more extended examination than is fit or needful for 
me to make. When the colonies were established in this 
country, the British crown made grants of the soil to the 
colonies, and to individuals. Virginia originally claimed 
a large extent of territoiy under a grant made in 1609, 
the boundaries of which were assumed without any accu- 
rate or definite knowledge, which was possessed by the 
grantor or grantee, as to the extent of the grant. In 
1632, a grant was made to Lord Baltimore of an exten- 
sive territory, embracing within its limits, to some extent, 
the same land which had previously been the subject of 
grant. A grant was made on 7th of October, 1691, 
in the third year of William and Mary, under which 
Massachusetts claimed rights. After the adoption of the 
federal constitution, the country was embarrassed by its 
indebtment, and the several states were encumbered with 
liabilities. 

It was essential to the peace and prosperity of the 
country, it was due to its integrity and to the faith which 
had been reposed, that some means should be adopted to 
improve the condition of the community, to discharge the 
public assurances. The waste lands which had been the 
property of the crown, to some of which the states seve- 
rally asserted title, as owners, were naturally regarded as 
a source or fund from which to obtain the means of pay- 
ing and of performing the obligations which had been 
assumed. The application of the lands to this purpose 
was regarded as an appropriate use and •disposition, not- 
withstanding the title and ownership of the several states 
was not of equal value. This inequality of interest was 
not considered as an obstacle, or as affording cause of 
serious objection. The people had one purpose and one 
view. Which was patriotic, and regarded only the welfare 
of the country as a whole. Taking advantage of the 

33 



258 THE SCIENCE OF GOVERNMENT. 

opinion and disposition which prevailed, congress, in Sep- 
tember, 1780, recommended to the several states in the 
union having claims to western territory, to make cessions 
of a portion thereof to the United States. In October 
of the same year, congress resolved that any lands so 
ceded, in pursuance of their previous recommendation, 
should be disposed of for the common benefit of the 
United States ; should be settled and formed into distinct 
republican states, and that the land should be settled and 
granted under regulations which congress might adopt. 
In 1783, congress adopted another resolution, setting forth 
the conditions on which cessions of territory should be 
received. Immediately after this resolution, Virginia 
made a cession, referring to the resolution of congress 
passed in September, 1780, whereby the title of Virginia 
to the north-west territory, was transferred to the United 
States, upon an express condition that the lands so i ceded 
should be considered as a common fund, for the afsfejand 
benefit of such of the several states as had or should 
become members of the union, and should be in good 
faith applied to such purpose, and for no other use. Mas- 
sachusetts, Connecticut, and New York have made simi- 
lar grants, and upon similar trusts and conditions. The 
United States hold the land as owner and as sovereign, 
for purposes of revenue, and for the purpose of enlarging 
our political institutions. All of the grants of the seve- 
ral states were made upon three conditions : First, that 
the ceded territories should be formed into states, and 
admitted in du£ time into the union, with all the rights 
belonging to other states ; Secondly, that the lands should 
constitute a common fund, to be disposed of for the gene- 
ral benefit of all the states ; Thirdly, that they should be 
sold, and settled, at such time as congress should direct. 
The federal government, acting in good faith, cannot dis- 
regard the trusts to which it has assented, by an accept- 



THE SCIENCE OF GOVERNMENT. 259 

ance of the grants by which it acquired its title as owner, 
to the public lands. Such acceptance does not bind or 
qualify the right of the federal government over the 
territory, in relation to matters of sovereignty. The pro- 
vision, that the territory should in due time be formed 
into states, and admitted as such into the union, with the 
same privileges as other states enjoy, leaves the discretion 
of congress, in this particular, to be exercised in accord- 
ance with its own judgment. The public lands were not 
exclusively obtained under the several state grants, to 
which reference has been made. In addition to the 
grants made by the several states, cessions have been 
made by foreign sovereignties. Louisiana was purchased 
of France, or taken in discharge of supposed claims 
against that country. Florida was obtained from Spain. 
Some portion of the Oregon territory was procured from 
Spain. In relation to other portions of this territory, it 
may, perhaps, be said, that the United States hold it by 
discovery and occupation. The United States have also 
acquired large bodies of land, by cession or purchase 
from the Indians. Many of the most important subjects, 
which appertain to the duties of the federal government, 
have been the occasion of vehement party discussion; 
they have given opportunity for the invention of many 
schemes and theories, sound and unsound. This may be 
said in relation to the public lands ; the course of the 
government, in its disposition of them, has been frequently 
disapproved and condemned, from time to time. Some 
few years since, it was urged in the senate of the United 
States, that the management of the public lands by the 
government had been harsh, illiberal, and severe ; that 
the citizens, who had embarked their fortunes in the great 
west, with a determination to unfold its capacity and to 
advance it to a state of civilization, should be encouraged 
and sustained by donations of the soil. This proposition 



260 THE SCIENCE OF GOVERNMENT. 

was calculated to commend itself, as a liberal and humane 
arrangement. It was, however, resisted ; and upon a 
resolution introduced in the senate of the United States, 
by which an inquiry was proposed in relation to the 
mode of selling the public lands, and to ascertain the 
expediency of more rapid sales, a debate arose in which 
extraordinary and able efforts were made by several 
senators. The resolution gave rise also to a discussion 
not immediately connected with its subject, which pro- 
duced an examination and consideration of some portion 
of our system, of the duties and powers of government, 
in relation to which a senator from Massachusetts/ 1 ' made 
a most profound, constitutional exposition. The public 
lands, as property, as a source of revenue, are of much 
value. This value, however, is of trifling importance 
when contrasted with the political associations and insti- 
tutions, which have resulted, which may continue to result, 
from the owmership and possession of them. After a 
sale and settlement of a section of territory has been 
made, the occupants of the soil, although under the pro- 
tection of the United States, have no local legislation or 
tribunals, by which to protect their individual rights as 
members of society. This condition of things, in which 
every man virtually makes and construes his own law, 
cannot with safety be sustained or permitted. To avoid 
the evils of such position, congress, under the constitution 
of the United States, establishes a territorial government, 
provides for the existence of legislative, judicial, and exe- 
cutive departments, generally appointing the officers of 
the judicial and executive departments, through the 
action of the President of the United States, reserving a 
control over the acts of the legislative department, which 
is composed of members chosen by and from the terri- 

* The Hon. Daniel Webster. 



THE SCIENCE OF GOVERNMENT. 261 

tory. In this respect, congress exercises its own discre- 
tion, and confers more or less power upon all the local 
officers and departments, according to the peculiar cir- 
cumstances connected with the territory to be governed. 
The power of congress is limited and controlled only by 
the constitution of the United States, which it cannot 
disregard. Any and every power or authority conferred 
upon a territorial government, must be in subjection to 
the constitution ; and any attempt to transcend this instru- 
ment would fail in its accomplishment. 

The constitution of the United States is coextensive 
with the sovereignty of the United States ; and any and 
every territory which rightfully belongs to the one can- 
not be above or beyond the control of the other, al- 
though, in some instances, from a want of local law, of 
departments and institutions, it may not be applied. 
Whenever territory has been obtained by cession from 
France, or other foreign country, the laws of the country 
by which the cession may have been made, are regarded 
as the measure of right, or as the laws of the territory, 
until the United States impose other rules and regula- 
tions. This is, however, limited by the constitution and 
nature of our civil institutions, against which no foreign 
law can prevail by adoption or permission. The cession 
of the soil and sovereignty of a country or province, does 
not operate as a cession, or as an extinguishment of indi- 
vidual private right. Persons occupying a ceded terri- 
tory may continue and become subjects of the sove- 
reignty to which it may have been ceded ; or they may 
dispose of their effects, and become residents of other por- 
tions of the country of their original allegiance, or of any 
other which may suit them. This is regarded as a mat- 
ter of public law, of public right, without any stipula- 
tion, although in the cession of territory by one sove- 
reignty to another, it is usual to make provision for the 



262 THE SCIENCE OF GOVERNMENT. 

security of individuals, and of private right. In the 
treaty by which Louisiana was transferred to the United 
States, it is provided, that " the inhabitants of the 
ceded territory shall be incorporated in the union of the 
United States, and admitted, so soon as possible, accord- 
ing to the principles of the federal constitution, to the 
enjoyment of all the rights, advantages, and immunities 
of citizens of the United States ; and, in the meantime, 
they shall be maintained and protected in the free enjoy- 
ment of their liberty, property, and the religion which 
they profess." This short clause contains three important 
stipulations on the part of the United States. That the 
territory should be admitted to the union as a state, so 
soon as it could be in conformity with the constitution ; 
that the inhabitants should thereby become citizens of 
the United States, and in the meantime should be pro- 
tected in their liberty, property, and religion. All these 
stipulations are qualified and restricted by the constitu- 
tion, and their performance could be required only so far 
as the forms of our government permit a performance 
thereof. Similar provisons have been in other cessions 
of territory. In October, 1803, congress passed an act, 
authorizing the president to take possession of the terri- 
tory which had been ceded by France. Subsequently 
the same was divided into two districts, and territorial 
governments were established ; the southern portion 
under the name of Orleans, and the other under 
the title of district of Louisiana, In April, 1812, the 
southern district was admitted to the union as a state, 
under the name of Louisiana and the name of the other 
district was changed to that of Missouri, and subse- 
quently, on the 10th of August, 1821, became a state 
under the name of Missouri. The admission of this state 
caused a disagreement, at the time, between the two 
branches of congress. It also produced an excited and 



THE SCIENCE OF GOVERNMENT. 263 

somewhat turbulent debate, growing out of an effort to 
prohibit slavery. Henry Clay exerted an important and 
conciliatory influence, which was productive of much 
good, which did much to allay angry feeling, to carry the 
union through a boisterous passage. The territories of 
the United States are ordinarily allowed to send dele- 
gates to the house of representatives, a branch of congress, 
w 7 ho are allowed to talk and discuss measures, but are not 
allowed to vote for the adoption or rejection thereof. 
This last right cannot be conferred constitutionally, ex- 
cept upon a representative or senator of some state. The 
delegate of a territory, however, can advise in relation to 
the condition and character of the territory which he 
represents, and thereby furnish to those who make law 
for his constituents' local information, which might not 
otherwise be so readily or accurately obtained. The 
principal officers, judicial and executive, of a territory, 
are frequently selected from without the territory in 
which their duties are to be performed. This is often a 
cause of disquiet and uneasiness, inasmuch as the people 
are inclined to think, that all the offices and emoluments 
of place belong to themselves; that they are, in fact, more 
conversant with and more competent to manage their 
own affairs than strangers can be. This is undoubtedly 
true ; the feeling exhibits the influence of our system, in 
favor of free institutions, in favor of an extension of po- 
litical rights to all, and it exhibits in the people an im- 
patience, an unwillingness in any condition in which 
they are not so free as their neighbors ; it also shows a 
willingness to extend to others the freedom which is 
vouchsafed by our system. 

The result is, that so soon as a territorial government 
is established, the people look forward to an improvement 
in their political condition, which can be attained only by 
the establishment of a state government. This condi- 



264 THE SCIENCE OF GOVERNMENT. 

tion, when attained, is the last, and it may with propriety 
be said, the most important, in which the public lands are 
considered. They are now to be regarded in their poli- 
tical aspect. Under the constitution of the United States, 
new states may be admitted by the congress into the 
union ; but no new state can be formed or erected within 
the jurisdiction of any other state, nor can any state 
be formed by the junction of two or more states, or parts 
of states, without the consent of the legislatures of the 
states concerned, as well as of the congress. Whether 
the framers of the constitution contemplated the acquisi- 
tion of new territory, may be doubted. Whether con- 
gress can acquire new territory merely for the purpose 
of creating new states, is an entirely different question; 
it can, without doubt, control any territory which apper- 
tains to the United States. I am unable to find any pro- 
vision in the constitution, from which congress can assert 
in itself a right to purchase territory at its pleasure, at 
the cost of the nation, for the purpose of enlarging its 
domain or increasing the number of its states. As I have 
attempted to show, in a previous lecture, the acquisition 
of territory should be a matter of necessity, growing out 
of circumstances, under the control of the war or treaty- 
making power of the government. 

In relation to the powers of the government, the people 
are inclined to enlarge or diminish them, in accordance 
with their wishes, momentarily forgetting or disregarding 
the fact, that the federal government is limited in its 
powers and in its purpose. Whenever an act of govern- 
ment is in harmony with the opinion or wish of a large 
majority of the people, no one can successfully gainsay 
or resist it, provided such act is of a sovereign political 
character. An act of the government, in fraud or in vio- 
lation of private right, of contract, or which goes to the 
destruction of private property without compensation, 



THE SCIENCE OF GOVERNMENT. 265 

can be by the aid of the judiciary, successfully resisted. 
If the legislative or treaty-making power shall, in viola- 
tion or in disregard of our system, acquire additional and 
foreign territory, it would probably be beyond the power 
of the judiciary to control or resist such acquisition. 
Although the judiciary is designed to uphold the consti- 
tution, to prevent its infraction, to restrain other depart- 
ments and officers within constitutional limits, there are 
some matters of a political bearing and character which 
it cannot reach. If the legislative and executive depart- 
ments admit that the state of the country in its relation 
to any other country, is a state of war, the judicial de- 
partment must conform to such recognition of the status 
of the country, and regard it as a state of war. 

Upon the same or a similar principle, it may be urged 
with great plausibility, that whenever the legislative and 
executive departments recognize certain territory as the 
territory of the United States, the judiciary is bound to 
regard it as territory of the United States. The acquisi- 
tion of territory must depend, therefore, practically, upon 
the fidelity and integrity of the legislative and executive 
departments. These departments have the same interest 
to uphold and adhere to the system, as the people or any 
other department of government can have. Congress is 
bound to maintain in every state a republican form of 
government ; this obligation applies to new states, so 
well as to old, and whenever a state is admitted, whatever 
its constitution may be, whatever laws it may pass, each 
and all of these, when they become the subject of discus- 
sion in the judicial tribunals, must conform to the consti- 
tution of the United States, and if they do not so con- 
form, they will be regarded as null and void. From this 
short survey of the public lands, you may perceive their 
value as a matter of money, as property held by the 
United States in trust, for certain specified purposes, 

34 



266 THE SCIENCE OF GOVERNMENT. 

which they are bound to execute, and which they may 
not rightfully disregard. Lands have been given to sol- 
diers, and to their families, for services rendered or to be 
rendered ; they have been the subject of donation ; and, 
under some emergencies it may be and undoubtedly 
would be judicious, and within the rightful exercise of 
power, to give away portions of them ; but an indiscri- 
minate donation of them, as matter of mere charity or 
grace, or to build up any one state at the expense of 
another, would be a violation of the trusts under which 
they are holden. 

The survey which has been presented also shows their 
political value and history. It shows you how states are 
made, and that the policy of the government has been 
liberal. A new country, when first settled, generally has 
as pioneers a hardy, industrious, and adventurous race of 
men, of different origin, of different habits, each class 
having its own peculiarities. The territorial government, 
which is the first in the order of progress, is designed to 
encourage and stimulate their exertions. They are aided 
in their public enterprises, and in the support of govern- 
ment, from the exchequer of the country. In process of 
time, they advance in civilization, in the arts and sciences, 
in education, and in a knowledge of free institutions, in 
habits and purpose. In this respect they differ from colo- 
nies, because they are in a state of pupilage, and look 
forward to the time at which they may emerge. Where- 
as colonies once are colonies forever, unless they rise 
against the parent government, and by reason of actual 
or supposed wrongs and grievances, assert their indepen- 
dence, and assume their inalienable right to have a voice 
and an influence in their own government. The continu- 
ance of a territorial pupilage is dependent upon many 
considerations. In the case of a portion of the territory 
acquired from France, that which is now Missouri, some 



THE SCIENCE OP GOVERNMENT. 267 

eighteen years elapsed before its admission as a state. 
The title to the public lands holden by the United States, 
has in part been obtained by purchase of the Indian 
tribes. They occupy a relation to the United States, 
which has its own peculiarities. This relation has been 
examined as a moral question, and many persons have 
regarded them as the subjects of wrong and oppression. 
The theory of all civilized nations in relation to them 
has been, that civilization and the elevation of mind and 
morals, which may result therefrom, is the great object 
and purpose of human existence ; that the progress of 
civilization is and must be onward, although its progress 
may be marked by those who may fall by the wayside, or 
by the memorials and remembrances of a race extinct. 
In pursuance of this theory, the natives of a before un- 
known country, when discovered by civilized nations, 
recede, and continue to recede until the places which- 
once knew them shall know them no more. The policy 
of the United States, which has been adopted in their in- 
tercourse with the Indian tribes, has been liberal and 
humane. They are regarded as the owners and occu- 
pants of the soil over which their hunting grounds may 
extend, and in its occupation they have been and are 
protected. They are allowed to govern themselves, in 
their internal and domestic affairs, without check or re- 
straint. They have been furnished with implements of 
husbandry, and many efforts have been made in their 
favor, designed to elevate and improve their moral and 
intellectual condition. They are not, however, allowed 
the rights which appertain to the ownership of the soil. 
They cannot sell their land without the consent and ap- 
probation of the United States; and although they are 
permitted to establish and to execute their own internal 
rules and usages, they are under the protection and sove- 
reignty of the United States. 



268 THE SCIENCE OF GOVERNMENT. 

The United States have been accustomed to make trea- 
ties with the different Indian tribes, in which they stipu- 
late as sovereign contracting parties. These treaties 
have been made, generally, with intent to secure to them 
the privileges which they are permitted to enjoy, to pro- 
tect their rights, and to afford inducements and opportu- 
nity for their improvement, with the intent also to in- 
duce a disposition, on the part of the tribes, of gratitude 
and dependence. The government of the United States 
has adhered with fidelity and exactness to its treaty stip- 
ulations. The Indians have been protected from encroach- 
ments by the adjoining states, and the citizens of the 
United States have been restrained from improper or 
wrongful interference with the pursuits or occupation of 
the Indians. In 1802, an act was passed by the congress 
of the United States to regulate trade and intercourse 
with the Indian tribes, and preserve peace on the frontiers. 
By this act it is provided, that no one should enter the 
Indian territory without a passport. Offences against 
the Indians and their territory are punishable under the 
laws of the United States ; no settlement or survey, in 
territory secured by treaty to an Indian tribe, can be 
made by citizens of the United States, or by other per- 
sons not belonging to the tribe. The murder of an 
Indian by a citizen of the United States, or by other 
person not belonging to an Indian tribe, is punishable by 
death. Traders are not permitted to enter their territory, 
except under a license from the United States, which may 
be recalled by its government. The statute also provides 
that no purchase, grant, lease, or other conveyance of 
lands, or of any title or claim thereto,. from any Indian, 
or nation or tribe of Indians, within the bounds of the 
United States, shall be of any validity, in law or equity, 
unless the same be made by treaty or convention, entered 
into pursuant to the constitution. The act also provides, 



THE SCIENCE OF GOVERNMENT. 269 

that in order to promote civilization among the friendly 
Indian tribes, and to secure the continuance of their 
friendship, it shall be lawful for the President of the 
United States to cause them to be furnished with useful 
domestic animals, and implements of husbandry, and with 
goods or money, as he shall judge proper, and to appoint 
such persons from time to time, as temporary agents, to 
reside among the Indians, as he shall think fit. Prior to 
the passage of this act, and so early as May, 1800, pro- 
vision was made by law for defraying the expense of 
travel to and from the seat of government, of such In- 
dians as might visit the same, from the public treasury. 
In 1819, an act was passed, making provision for the civi- 
lization of the Indian tribes adjoining the frontier settle- 
ments, by which the President of the United States was 
authorized to employ capable persons to instruct Indians 
in agriculture, and to teach Indian children in reading, 
writing, and arithmetic. Similar provisions, designed to 
improve the character and condition of the Indian race, 
have been since made. Prior to the revolution, the lands 
in the United States were claimed by different foreign 
sovereignties, or by grants under them upon an alleged 
right of discovery. Discovery, as generally understood, 
gives an exclusive right to the discoverer to extinguish 
the Indian title by purchase, or by conquest, and gives 
also such right of sovereignty as the condition of the 
people may permit the discoverer to exercise. These 
rights by cessions to individuals, to colonies, and to the 
United States, have been transferred from the sovereign- 
ties which asserted title thereto, in the first instance, and 
are now owned by their grantees, or those claiming under 
them. The United States have not asserted its title ori- 
ginating in discovery, so far as to acquire the absolute 
possession, by the forcible expulsion of the Indian tribes. 
They have purchased as their convenience has required, 



270 THE SCIENCE OF GOVERNMENT. 

maintaining only in themselves an exclusive right to pur- 
chase. The title of the Indians to occupancy has been 
uniformly sustained and vindicated by the supreme court 
of the United States, in many cases before it, in which 
the Indian title has been discussed. The court has also 
maintained the political rights of the Indians, to the same 
extent as they have been recognized by the legislative 
and executive departments of the federal government. 
In a case designated, " The Cherokee Nation v. The State of 
Georgia" the court say, the Cherokee nation is not a for- 
eign state, in the sense in which the term is used in the 
constitution of the United States. The Cherokees are a 
state ; they have uniformly been so regarded. The trea- 
ties made with them by the United States, recognize 
them as a people capable of maintaining the relations of 
peace and war, of being responsible in their political char- 
acter for any violation of their engagements, or for any 
aggression committed on the citizens of the United States, 
by any individual of their community. The Indians are 
acknowledged to have an unquestionable right to the 
lands they occupy, until that right shall be extinguished 
by a voluntary cession to the United States. They can- 
not appropriately be designated foreign nations, but they 
may be denominated domestic dependent nations. They 
occupy a territory to which the United States assert title, 
independent of their will, which must take effect in pos- 
session, when the Indian possession ceases. They look to 
the United States for protection, rely upon its kindness 
and its power, and appeal to its sovereignty, in all cases 
of want or difficulty. 

In another case instituted by Worcester v. The State of 
Georgia, in the supreme court, to reverse a decision of the 
state court, the political rights of the Indians were 
acknowledged and vindicated against the improper and 
unconstitutional legislation of Georgia. In this case it 



THE SCIENCE OF GOVERNMENT. 271 

is said, that the treaties and laws of the United States 
contemplate the Indian territory as completely separated 
from that of the states; that all intercourse with the 
Indians should be carried on under the exclusive govern- 
ment of the union; that they had always been recog- 
nized as distinct, independent political communities, re- 
taining their original natural rights as the undisputed 
possessors of the soil, from time immemorial. The case to 
which reference has been made, contains an able review 
of the origin and character of our political history, of the 
rights of discovery, of our title to the soil, and of our 
policy in relation to those whose fathers preceded our 
ancestors in its possession. The chief justice closed an 
able opinion by saying, " The Cherokee nation is a dis- 
tinct community, occupying its own territory with boun- 
daries described, in which the laws of Georgia have no 
force, and which the citizens of Georgia have no right to 
enter, but with the consent of the Cherokees, or in con- 
formity with treaties, or with the acts of congress." I 
have briefly exhibited to you the mode and objects in 
and from which the revenue of the state, and of the 
national sovereignty, is obtained. In so doing, I have 
referred to matters more or less directly connected there- 
with, from which you will perceive, that a division and 
limitation of power is manifest throughout. You will 
also perceive, that a disposition to encourage the estab- 
lishment of political institutions, based upon the will of 
the people, is a prominent and pervading element. 



LECTURE X. 



THE RELATION WHICH SUBSISTS BETWEEN THE FEDERAL GOVERNMENT AND THE 
SEVERAL STATES. — BETWEEN THE SEVERAL STATES AS INDEPENDENT SOVEREIGN- 
TIES .— BETWEEN THE CITIZENS OE THE SEVERAL STATES. 



The colonies which existed in the United States under 
the protection and control of the British crown, by means 
of the American revolution, became independent as states, 
or political sovereignties. The people formed constitu- 
tions, by which the powers of government were defined, 
and thereby the relation between the people and the 
government was established. The people reserved cer- 
tain rights to themselves, and retained control, to a certain 
extent, over the government, so as to secure a faithful 
administration of the trusts reposed. In all the state 
constitutions so adopted, evidence is contained, showing 
that the people did not consider themselves made for the 
use or benefit of those who might exercise the powers of 
government, that in their judgment, government should 
be established for the use and benefit of those governed. 
The state sovereignties, although vested with limited 
jurisdiction, were independent of all other sovereignties 
or governments ; they were amenable only to the consti- 
tution under which, and to the people of the state for 
which they had been established. The several states, as 
originally constituted, exercised the powers of war and 

35 



2W4 THE SCIENCE OF GOVERNMENT. 

peace, of making treaties, of regulating their intercourse, 
and the intercourse of their citizens, with other states 
and citizens. 

At this period of our history, there were two, and only 
two, depositories of power, the people and the state gov- 
ernment. Soon it was ascertained that the several states, 
independent of each other, with no common bond or con- 
tract of union, had many interests in common, for the 
attainment and security of which they had acted together 
against the parent government from which they had 
severed. It was ascertained that the foreign relations of 
the several states were similar in purpose ; that the 
citizens of the several states, in their business operations, 
mingled with each other. To avoid collision and conten- 
tion between themselves, to make common cause against 
external enemies and influence, an association of the 
states was proposed and carried into effect, in the form of 
articles of confederation and perpetual unjon, which was 
assented to by the thirteen original states. In this ar- 
rangement the several states acted in their sovereign 
capacity as states, in which the people, acting as indi- 
viduals, had no direct agency. It was agreed, that the 
confederacy should be known as the United States of 
America ; that each state should retain its sovereignty, 
freedom, and independence ; and every power, jurisdic- 
tion, and right which had not been expressly delegated 
to the United States in congress assembled. Provision 
was made for a congress composed of delegates from the 
several states, the states reserving power to recall their 
delegates at any time, by the substitution of others. By 
these articles the states severally entered into a firm 
league of friendship with each other for their common 
defence, the security of their liberties, and their mutual 
and general welfare, binding themselves to assist each 
other against all force offered to, or attacks made upon 



THE SCIENCE OF GOVERNMENT. 275 

them or any of them on account of religion, sovereignty, 
trade, or any other pretence whatever. The general in- 
tent of mutual aid and protection is manifest in the arti- 
cles adopted. A prominent and important purpose was 
sought to be attained by providing that no state, without 
the consent of the United States in congress assembled, 
should send or receive an embassy from, or enter into 
any conference, agreement, alliance, or treaty, with any 
king, prince, or state ; that no two or more states should 
enter into any treaty, confederacy, or alliance with each 
other, without the consent of congress. These articles 
contain evidence of much political knowledge and saga- 
city ; they were, however, cumbersome, and, from many 
defects, were found insufficient and incompetent to ac- 
complish the purpose for which they were designed. In 
this condition of the country, it became essential to its in- 
terests, and to the safety of the people, to devise some 
scheme by which to avoid the inconvenience, the insuffi- 
ciency, and the evils of the articles of association. A 
convention of delegates from the several states was sug- 
gested, and the suggestion w T as adopted, for the purpose 
of proposing a remedy. This convention was composed 
of the most able and patriotic men in the country, who 
were chosen for their distinguished ability and patriotism. 
After days of deliberate, candid, and careful discussion 
and consideration, an instrument, designated the constitu- 
tion of the United States, was recommended to the peo- 
ple of the United States, not to the people of a single 
state, for their adoption and ratification. It was not 
offered for the adoption and ratification of the several 
states in their sovereign capacity, in which capacity they 
had previously assented to the articles of confederation, 
but to the people of the entire country, acting upon their 
individual will and responsibility. The people, in fact, 
through this convention, and the instrument which the 



276 THE SCIENCE OF GOVERNMENT. 

convention had prepared and recommended, proposed to 
the several states, that they should surrender and volun- 
tarily relinquish some portion of the power of the sove- 
reignty with which they were clothed ; that the people, 
upon such surrender and relinquishment of power, would 
establish a second or another government, upon which the 
power and sovereignty relinquished should be conferred. 
This additional government was designed to be a gov- 
ernment of the entire people of the United States, whose 
sovereignty and authority should not be bounded by 
state lines, but should be commensurate with the terri- 
tory which belonged to the several states. This was not a 
matter of force, but of voluntary action ; the several states 
were not obliged to submit to this diminution of their 
authority ; they were not obliged to yield to the creation 
of another and independent government, which should 
assume a portion of the jurisdiction which they had ex- 
ercised. The state governments, however, were govern- 
ments of the people ; and they yielded to their request, to 
their moral power, by permitting the proposed constitu- 
tion to be submitted to them for their adoption and rati- 
fication. To carry this project into effect, the people, 
acting in conventions assembled in the different states, 
accepted the constitution proposed, and thereby the fede- 
ral government came into existence as an independent 
sovereignty, to the extent of the powers conferred. 
Many of the provisions contained in the articles of con- 
federation were substantially inserted in the constitu- 
tion. The great difference consisted in the substitution 
of a government clothed with power to exercise its 
trusts, with machinery and departments of its own, ade- 
quate to their execution, in the place and instead of a 
treaty, compact, or alliance between different govern- 
ments, dependent for their performance upon their indi- 
vidual will and good faith. Prior to the adoption of the 



THE SCIENCE OF GOVERNMENT. 277 

constitution, as has been already stated, the depositories 
of power were two, the people and the state sovereignty. 
By an adoption of the constitution, the number of 
these depositories of power was increased to three : the 
people, the state government, and the federal govern- 
ment. By the cooperation of these depositories of power, 
3-our rights are sustained, your wrongs are compensated, 
and the trusts of government are executed. 

In attempting to show, that the government of the 
United States is a government of the people, and not of 
the several states, I have not forgotten that the several 
states in their sovereign capacity, under certain restric- 
tions and limitations, choose the senators of the United 
States, and in so doing elect the members of one branch 
of one department of the federal government. This does 
not and cannot change or diminish the power or capa- 
city of the federal government, which does not depend, 
in these particulars, upon the implements or means by 
which one part of its construction is furnished, but it de- 
pends upon the instrument which defines its powers. It 
depends, so to speak, upon its charter. Regarding the 
two governments, the state and the national, as they have 
been described in previous lectures, you will easily per- 
ceive and understand the simplicity and certainty with 
which their several and respective action is regulated. 
The federal government is charged and intrusted with 
the performance of certain prescribed trusts or duties, 
operating upon and for the entire people of the United 
States. But its power does not extend to the ordinary 
business operations of the community, which are of a 
local character ; so that, if no other than the federal 
government existed, the people in these particulars of 
daily concernment, and which constitute the principal 
objects of civil society, would be left to themselves with- 
out government. To avoid this, the state government 



278 THE SCIENCE OF GOVERNMENT. 

intervenes, and regulates the matters not confided to the 
federal government. The result of the system, as it has 
been established, is, you live under two governments, each 
independent within its constitutional limit, of the action 
of the other, each acting upon you, and upon your inter- 
ests, in certain different particulars, to accomplish differ- 
ent individual purposes, but with and for th£ same general 
intent, which is your protection and security, at home 
and abroad, in the enjoyment of all the rights which civil 
society and its institutions can furnish. 

Whenever two governments are mentioned, or refer- 
ence is made to several governments, as distinct, indepen- 
dent sovereignties, the mind ordinarily and naturally re- 
gards them as foreign to each other. This cannot be said 
of the federal and state governments, in the sense in 
wdiich the term foreign is used in its application to gov- 
ernments. The federal and state sovereignties, are not 
hostile or adverse to each other ; they cannot be hostile 
or adverse to each other, as foreign nations, each control- 
ling a different territory and people, may be hostile or 
adverse to each other. They cannot and do not nego- 
tiate with each other by treaties or embassies. They 
cannot assume, in relation to each other, a state of war. 
Although these two sovereignties are distinct and inde- 
pendent of each other, they exercise jurisdiction over 
the same territory and over the same people. The citi- 
zens or subjects of an individual state, are also citizens or 
subjects of the federal government. The state and fede- 
ral sovereignties are not superior the one to the other ; 
in this respect, they enjoy the same relative equality 
which is conceded to different foreign nations. Notwith- 
standing the restrictions imposed upon state authority in 
some particulars, and although it has been said, and can 
be said with truth, that the laws of the United States are 
supreme, and those of a state which may conflict there- 



THE SCIENCE OF GOVERNMENT. 279 

with must yield, these restrictions and such declaration 
do not import superiority or inferiority. The restrictions 
are designed to mark and define the boundary which ex- 
ists between the government or jurisdiction of a state, 
and the jurisdiction of the national sovereignty. 

It may be said of a statute or law of a state, constitu- 
tionally made, that it is supreme ; that a statute of the 
United States, in opposition or in conflict with such con- 
stitutional state statute, would be regarded void and in- 
operative. If the legislative department of an individual 
state declare, that a deed shall not be effectual to pass 
title to land, situate within the jurisdiction of such state, 
unless executed in the presence of two witnesses, an act 
of congress saying that the title may be passed by an in- 
strument executed in the presence of one witness, would 
be inoperative and void, because the acquisition of title 
to land within an individual state, is a matter of state re- 
gulation exclusively. The true position is, that the state 
and federal sovereignties, in relation to the different trusts 
severally confided, are alike supreme, and the law of each, 
in relation to its several trusts, is the supreme law of the 
land. The constitution of the United States, and the con- 
stitution of the commonwealth of Massachusetts, so far 
as they relate to the commonwealth and to its citizens, 
must be regarded as papers or charters, each exclusive of 
the other, relating to different parts of the same general 
system, by which the rights and duties of the citizens of 
Massachusetts are ascertained. These constitutions may 
be regarded as different parts, if I may so say, of one and 
the same instrument, when applied to citizens or residents 
of Massachusetts, each supreme within its limit, that is, in 
relation to the matters severally confided. The constitu- 
tion of the United States and the constitution of Ver- 
mont, constitute the fundamental law of that state ; so 
of every other state, add to its constitution that of the 



280 THE SCIENCE OF GOVERNMENT. 

United States, and its government is defined. If yon so 
consider these constitutions, yon will discover a system of 
government composed of two independent political insti- 
tutions or sovereignties, intrusted with distinct and dif- 
ferent, but limited powers, and you will readily under- 
stand the relation which these two political institutions 
maintain, severally the one to the other. You will also 
find the existence of three depositories of power, the 
people, the state, the federal government. I have at- 
tempted to show, that the state and the union are inde- 
pendent of each other ; that they are independent only 
so far as they are content each to perform its own duty. 
I have shown, that certain restrictions have been imposed 
upon state authority, some of which, those which exclude 
a state from the management of the foreign relations of 
the country, that which prohibits a state from any en- 
largement of its territory without the consent of congress, 
are of a political character ; others relate to the mainte- 
nance and security of private right. These restrictions, 
to some extent, afford the means, from which may be de- 
duced the relation or boundary of the two sovereignties. 
If either sovereignty at any time, as may be supposed, 
shall have encroached upon the other, the federal sove- 
reignty has, and from necessity must have, the final and 
conclusive power of decision. 

The relation which subsists between the several states, 
is different from that which they severally sustain to the 
union. Prior to the adoption of the federal constitution, 
they were independent of each other, bound by no ex- 
ternal obligation or law, except the law of nations, as ap- 
plied or applicable to different sovereignties in their in- 
tercourse with each other. The articles of confederation 
which were originally adopted, were mere matters of con- 
tract, of agreement, in the nature of treaty stipulations. 
The several states, independent of such agreement, were 



THE SCIENCE OF GOVERNMENT. 281 

foreign to each other. By the adoption of the federal 
constitution, the extent of state sovereignty was dimin- 
ished, by a surrender to the people, and a transfer by 
the people to the union. The independence of the sev- 
eral states in relation to their reserved powers is perfect, 
notwithstanding the constitution of the United States, 
and they are now as formerly foreign to each other, di- 
vested of the power or authority of making political con- 
tracts between themselves or with other foreign nations. 
The surrender of sovereignty which was made, did not 
enlarge the sovereignty, or enure to the benefit of the 
several states, in their individual character or capacity ; it 
enured to the federal jurisdiction. As a compensation 
for the surrender, and as protection, the federal sove- 
reignty undertook and engaged to guarantee to every 
state in the union a republican form of government, and 
to protect every state from invasion or insurrection. If 
any state shall make an inroad upon another, or shall at- 
tempt to change or subvert its form of government, the 
federal sovereignty is bound to suppress such inter- 
ference* 

That the states are foreign to each other as political 
institutions or sovereignties, has been determined by the 
federal judiciary, in a case which arose upon a bill of 
exchange, drawn by a citizen of one state, upon a resi- 



* The mode in which the federal jurisdiction is to uphold a republican form 
of government in the several states, has not been prescribed. Whenever it 
shall be the subject of discussion, for the purpose of its execution, difficulty and 
embarrassment will be the result. The question has not arisen, and probably 
may not arise. AVhat constitutes a republican form of government, is not a 
matter susceptible of an exact and precise definition. If any state should in- 
graft upon or insert in its constitution a provision subversive of, and at variance 
with, a republican form of government, so far as it may operate upon individual 
personal rights, the judiciary of the United States, with the aid of legislation 
by the congress of the United States, might probably afford protection. The 
most decisive and effectual, perhaps the only effectual remedy, in any such con- 
tingency, must be found in the intelligence and integrity of the people. 

36 



282 THE SCIENCE OF GOVERNMENT. 

dent or citizen of another state. In the discussion had 
upon this subject, the court say, for all national purposes 
embraced by the federal constitution, the several states 
and the citizens thereof are one, united under the same 
sovereign authority, and governed by the same laws. In 
all other respects, the states are necessarily foreign to, 
and independent of each other. Their constitutions and 
forms of government being, although republican, alto- 
gether different, as are their laws and institutions. Mr. 
Justice Story, in a treatise written by him upon this sub- 
ject, says, " This doctrine is founded upon clear and 
determinate principles ; for not only has each state a sep- 
arate and distinct municipal jurisprudence, founded upon 
its customary or common law, or statutable enactments ; 
but each state is absolutely sovereign in its political or- 
ganization, government, and dominion, saving and except- 
ing only so far as there is a limited supreme sovereignty 
conferred upon the national government by the constitu- 
tion of the United States." 

The laws of a state have no force or effect in any other 
state, except so far as the constitution of the United 
States may give effect to them. The process of a state 
in its force and effect, is limited to the state within and 
by which it may be issued. Each state, in fact, regulates 
its own domestic affairs, without any restraint imposed by 
the legislation or local habits or institutions of any other 
state. In all these particulars they act as foreign to each 
other, and are to be so regarded. In some instances, the 
states voluntarily enact statutes in language copied or 
borrowed from the language of a statute of another state. 
This has been done, in some instances, in relation to a 
class of contracts required to be in writing, and also in 
relation to wills, the descent of estates and mortgages of 
personal property. The several states are not only for- 
eign to each other, but as a general proposition they are 



THE SCIENCE OF GOVERNMENT. 283 

severally independent of each other. As sovereignties 
or political institutions, they are absolutely independent 
of each other, under all circumstances. In other words, 
I mean to say, that no state by virtue of its sovereignty 
can impose any restraint, restriction, or obligation upon 
any other state. The independence of a state, however, 
is limited to, and confined by a qualified extent of juris- 
diction, and to the same extent as it has surrendered its 
sovereignty, by permitting a transfer of certain powers 
to the union, inasmuch as by such transfer, it has volun- 
tarily diminished the subjects upon which its power might 
otherwise have been exercised. By the constitution of 
the United States, certain effect is given to the acts and 
proceedings of every state, in every other. If this is dis- 
regarded by any state, or by its departments, the remedy 
or correction is by resort to the judiciary of the United 
States, and not by an attempt on the part of a state to 
correct by its own agency any supposed disregard of its 
rights by another state. The relation between the seve- 
ral states is in every instance regulated by law, and is to 
be preserved and maintained by the adoption of legal 
remedies or measures ; it is not and cannot rightfully be, 
under any condition of things, a relation of force, or of 
hostility. The constitution of the United States pro- 
vides, that " full faith and credit shall be given in each 
state to the public acts, records, and judicial proceedings 
of every other state. And the congress may, by general 
laws, prescribe the manner in which such acts, records, 
and proceedings shall be proved, and the effect thereof." 
This provision has been carried into effect by the legisla- 
tion of congress so far as its action was essential. As 
matter of public law, the acts, records, and judicial pro- 
ceedings of a country have no force or effect in any other 
country, except such as may be conceded as matter of 
comity, and whenever relied upon in a foreign jurisdic- 



284 THE SCIENCE OF GOVERNMENT. 

tion, they must be proved, as any other fact or matter is 
the subject of proof. This article in the constitution was 
designed to produce harmony between the several states, 
and to avoid inconveniences which otherwise might result 
from the intimacy and business operations existing, and 
which would be carried on between the citizens of the 
different states. If the right of one individual against 
another, over both of whom the judiciary of a state shall 
acquire jurisdiction, shall be ascertained and determined 
by such judiciary, the right between the parties is conclu- 
sively adjudicated, and in the absence of fraud, will be 
upheld in every other state of the union. This proceeds 
upon the ground, that a judgment obtained in the court 
of a state is not to be regarded in the courts of the other 
states as a foreign judgment, or merely as evidence to 
sustain an action, but is to be regarded as conclusive 
upon the merits of the matter, upon the rights of the 
parties. 

A judgment obtained in one state cannot be enforced 
in another state by process from the state court in which 
the judgment may be rendered, because the process of 
every state is limited in its operation, to and within its 
own territory. If parties litigate their rights, in the 
commonwealth of Massachusetts, in a court of the state, 
the determination, assuming that the court shall acquire 
jurisdiction of the parties and of the subject-matter, is 
conclusive, and will be so regarded in every other state ; 
but when sought to be enforced, and made available in 
another state, the remedy must be in accordance with the 
law of the state in which it is sought to be enforced. 
This does not impair or lessen the dignity or sovereignty 
of either state ; the right only of the parties is determined. 
The provision of the constitution to which reference has 
been made, is designed to prevent unreasonable inconve- 
nience and difficulty to individuals, which must have 



THE SCIENCE OF GOVERNMENT. 285 

resulted if a different system prevailed in this respect. 
If parties litigate their rights in England, or any other 
foreign country, by judicial proceedings in any court, 
except in one which acts upon principles of international 
law, the adjudication of such foreign court would not be 
regarded in the courts of this country as conclusive upon 
the merits, but would be regarded simply as presumptive 
evidence of the right. Such is, undoubtedly, the law as 
expounded by the judicial tribunals of the several states. 
Many eminent legal writers have maintained a contrary 
theory, assuming that a right judicially ascertained by a 
competent court, should be regarded as conclusively set- 
tled in the absence of fraud, and should be so regarded 
everywhere. This view of the subject, if considered and 
determined upon logical principles, without reference to 
the decisions of courts, is undoubtedly the correct view. 
The relation of the states to each other is modified and 
controlled, in a matter of great importance, by a provi- 
sion in the constitution of the United States which was 
designed to promote the peace and harmony of the coun- 
try. The article to which reference is made, says, a the 
citizens of each state shall be entitled to all privileges 
and immunities of citizens of the several states." This 
provision, practically, has been carried into effect, although 
its import and effect has not been the subject of consid- 
eration or of adjudication in the courts of the United 
States. Every independent sovereignty, ordinarily, has 
the exclusive authority and power to determine for itself 
who shall and who shall not enter its territory, and to 
say how far those who may be permitted to enter, shall 
be allowed the immunities and privileges of the country. 
This right is essential to the safety of every community, 
and depends upon the same principle upon which it has 
been said, that the house of every individual is his castle. 
As matter of fact, every civilized government is accus- 



286 THE SCIENCE OF GOVERNMENT. 

tomed to permit the citizens of other countries to enter 
its territory. In some instances, and, generally, passports 
are required, not for the purpose of imposing trouble- 
some and useless restraints, but to obtain some assurance 
that the individual may be admitted, without danger to 
the institutions, or to the repose of the country, whose 
comity he is allowed to enjoy. An individual, admitted 
within the territory of a country not his own, impliedly 
undertakes to demean himself so as not to endanger the 
sovereignty, whose comity and hospitality may be ex- 
tended to him. An individual thus admitted, for the time 
being, is subject to the law of the country in which he is 
allowed a temporary sojourn, and if he violate such law, 
he is amenable to its penalties ; he is also responsible to 
individuals, so far as he may attempt to interfere with their 
rights. The government which thus admits a stranger, 
may at any time, with or without reason, require him 
to leave its territory ; but such government is bound, so 
long as he remains under license express or implied, to 
protect him from all improper violations of his property, 
or character, or person. The right of refusing or admit- 
ting ingress, must be regarded as appertaining to the 
sovereign power, without the possession of which a gov- 
ernment must be regarded as imperfect. The several 
states, so far as the citizens thereof are concerned, except 
in relation to paupers and criminals, who may pass from 
one state to another, have no discretion or power in this 
respect. The citizens of any and of every state in the 
American union, have a right in every other state to the 
immunities and privileges thereof, if they elect to avail 
of them. A state, therefore, has imposed upon it an obli- 
gation to receive the citizens of the other states within 
its territory, which it cannot rightfully avoid or resist. 
The citizens of the several states may change their resi- 
dence and citizenship from one state to another at plea- 



THE SCIENCE OF GOVERNMENT. 287 

sure, not as matter of grace or comity, but as of right. 
The clause of the constitution to which your attention 
has been requested, has been the basis of much discussion, 
has been used and relied upon as an authority for theories 
and assumptions which have no legal existence, which 
cannot be sustained. In one aspect, a provision which 
requires a government or jurisdiction to receive within 
its territory a certain class of individuals, may well be 
regarded as an unreasonable and unwarrantable interfer- 
ence with its independence. The effect of this is modi- 
fied somewhat by the fact that the individuals of one 
state, thus admitted and received in another, are of similar 
habits and interests, and belong to the same country. A 
more important consideration connected with the subject, 
is deduced from the character, from the extent of the 
privileges and immunities extended. The citizen of one 
of the several states when he enters another state, under 
the provision by which the right is conferred, has the same 
immunities and privileges as are enjoyed by the citizens 
of the state into which he enters. Whenever citizens of 
the United States transfer their citizenship from one state 
to another, they do not transfer the rights which depend 
for their existence upon the law of the state from which 
they transfer themselves. The privileges and immuni- 
ties, which they may have enjoyed in the state which 
they abandon, do not attend them ; they do not take 
with them the law or the institutions, or the protection of 
the state from which they recede. By an abandonment 
of a state, its peculiar and local advantages are renounced, 
and cannot be resumed in another state. A citizen of 
South Carolina, under the shield of the constitution of 
the United States, may become a citizen of Massachusetts, 
and may enjoy the privileges and immunities which ap- 
pertain to a citizen of Massachusetts ; but he cannot in 
Massachusetts enjoy the privileges and immunities which 



288 THE SCIENCE OF GOVERNMENT. 

a citizen of South Carolina may have, by force of its law 
or local institutions. This fact is of the utmost impor- 
tance, and should never be forgotten or disregarded. In 
a particular state, the legal rate of interest may be seven 
or ten per cent., in another it may be six per cent. If a 
citizen of a state where the legal rate of interest is ten 
per cent., shall, under the constitution of the United 
States, become a citizen of a state in which only six per 
cent, is allowed by law, he must be content in his new 
residence, to negotiate his money for six per cent., the 
rate within the state of which he has become a citizen, 
and under whose laws his contracts are upheld.* The 
principle is sustained, and is susceptible of illustration, 
from a great variety of other propositions of similar im- 
port, which will readily occur to you, in relation to which 
the result is and must be the same, as it is in the instance 
which I have presented. It is difficult to perceive how 
any mind conversant with our institutions can dissent ; 
it has, nevertheless, been the subject of error and mistake 
in opinions which have been put forth. 

The new state of California has many inducements 
and attractions, some substantial and real, others falla- 
cious. It has been said, and may be said, that the citizens 
of every the several states, have equal right to become 
citizens of California ; this is true. A citizen of Georgia, or 
of any other state, has so much and the same right to go 
there as a citizen of Massachusetts can have ; neither the 
one nor the other can carry with him the law of the 
state which he may leave.* Every state regulates its 



* If a contract is made, by which interest is payable in a state where ten or 
seven per cent, is the legal rate, which shall subsequently be enforced in a state 
in which the legal interest is only six per cent., the interest allowed by the law 
where the contract is made, will be allowed as an incident or part of the con- 
tract. 

f Himes v. Howes, 13 Met. Rep. 80. " An indenture, by which the child of a 



THE SCIENCE OF GOVERNMENT. 289 

own internal affairs in accordance with its own judgment, 
and those who enjoy the immunities thereof, either by 
comity or right, cannot introduce or set up any foreign 
power or authority as the standard of right. In many of 
the several states, privileges and immunities are con- 
ferred or recognized by law, which are not and cannot 
be set up or exercised in other states. The diminution 
of sovereignty, to which reference has been made, is a 
matter of consent on the part of the several states ; it is a 
result of the union. By the establishment of a national 
government, a portion of the prerogatives which natu- 
rally belong to a sovereign state, has been surrendered, for 
the purpose, among other things, of a more perfect bond 
of union between the citizens of the several states. The 
citizens of the United States, as citizens of the federal 
government, are one and indivisible. It is, therefore, fit 
and convenient that they be allowed to pass from one 
state to another, as their business, their interests, or as the 
accidents and incidents of life may require. If they avail 
of this privilege, and transfer themselves from one state 
to another, it is not for the purpose of transferring the 
law or the institutions of a state to another, but simply 
to transfer themselves. Notwithstanding the right which 
appertains to the citizens of every state, at their election, 
to become citizens of any other state, limitations upon 



town pauper, in Rhode Island, is bound by the overseers of the poor, conformably 
to the law of that state, as an apprentice to a citizen of this state, is not valid here, 
although the statute of Rhode Island authorized the overseers to bind the party 
to a citizen of Rhode Island or to a citizen of Massachusetts." The princi- 
ple of this decision has been repeatedly recognized in the English courts. The 
overseers of the poor in Massachusetts are authorized to bind certain persons 
as apprentices, under a law similar to that of Rhode Island, except it contains 
no express provision, authorizing a binding out of the state, as does the Rhode 
Island statute. If the master of an apprentice, bound to him by the law of 
one state, voluntarily transfers himself and apprentice to another state, the ap- 
prentice is thereby released, although similar apprenticeship is permitted by the 
law of the state to which he may have been transferred. 

37 



290 THE SCIENCE OF GOVERNMENT. 

this right undoubtedly do and may exist. A state may 
rightfully, as a matter of self-preservation, exclude crimi- 
nals and paupers from its territory, whether they come 
from a foreign country or from a sister state. This is in 
accordance with an admitted universal principle, that 
every political right under our system is qualified, and 
cannot be arbitrarily set up, to the destruction of society 
or of political institutions. Another right of independent 
sovereignties, foreign to each other, is that of making 
treaties and political contracts with each other. The 
several states, although foreign to each other in many 
particulars, cannot be regarded in this respect as in the 
possession of such relation. They cannot enter into 
treaties with each other ; they cannot, as sovereignties, 
make any contract between themselves of a sovereign or 
political character. All contracts and arrangements of this 
description, between the several states, and between them 
and foreign governments, are exclusively matters which 
appertain to the federal government. Another matter 
of sovereignty, is the power of regulating contracts be- 
tween its citizens and those of other governments. In 
this particular the power of the several states, to some 
extent, is controlled. No state can pass a law, whereby 
the obligation of contract shall be impaired. No govern- 
ment, conducted upon correct principles, would attempt 
thus to interfere with or destroy private right. But the 
constitution of the United States has not trusted to the 
faith and fidelity of the state governments ; upon this sub- 
ject, it has guarded right by an express provision. This 
provision is not exclusively for the benefit of the citizens 
of a state, in their negotiations carried on with the citizens 
of another state, but it extends to all contracts without 
reference to the parties. It results, therefore, that a state 
cannot impair the obligation of contracts made by and 
between its own citizens, any more than it can of con- 



THE SCIENCE OF GOVERNMENT. 291 

tracts made by its citizens with citizens of other states, or 
with the citizens of foreign countries ; the restriction 
applies to all contracts. Another essential element of 
sovereignty is connected with the right or obligation of 
tradition. Between foreign nations, independent of con- 
tract between thein, a nation is not obliged to surrender 
any person or persons found within its jurisdiction. A 
nation cannot, by its agents or officers, enter the territory 
of another, forcibly and against its consent, in pursuit of 
its own subjects. This results from the fact, that the ter- 
ritory of every sovereignty is exclusively its own. The 
same principle is applicable to a supposed right of search, 
in time of peace, of vessels upon the high seas. The 
deck of every vessel is, in contemplation of law, the ter- 
ritory of the sovereignty under whose flag it sails. To 
avoid the inconvenience of this principle of public law, 
foreign nations, in modern times, have entered into nego- 
tiations, by which, under certain restrictions, they have 
agreed each to surrender to the other the citizens or sub- 
jects of such other. Notwithstanding the principle of 
public law to which reference has been made, a nation can- 
not rightfully entice the citizens or subjects of its neigh- 
bour, or seduce them from their allegiance ; such inter- 
ference by one government with the subjects of another, 
would be regarded as just cause of complaint and animad- 
version. With equal truth it must be said, that a gov- 
ernment cannot rightfully permit its territory to be used 
by foreigners, or by its own citizens, as a retreat or cita- 
del, from which to send forth marauders upon the peace 
and quiet, or institutions of another sovereignty. This 
right of tradition is not a matter of state arrangement, 
but appertains exclusively to the federal sovereignty. 
So far as it relates to the several states, in their relation 
with each other, the constitution of the United States 
has provided, that " a person, charged in any state with 



292 THE SCIENCE OF GOVERNMENT. 

treason, felony, or other crime, who shall flee from jus- 
tice, and be found in another state, shall, on demand 
of the executive authority of the state from which he 
fled, be delivered up to be removed to the state having 
jurisdiction of the crime." " No person, held to service or 
labor in one state under the laws thereof, escaping into 
another, shall in consequence of any law or regulation 
therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such 
service or labor may be due." 

This clause in its effect is exceedingly simple. It pro- 
vides, that no person legally subject to the jurisdiction of 
a particular state, shall, by escaping therefrom, avoid or 
resist the obligations which such jurisdiction may have 
imposed upon him. The clause operates a diminution of 
the sovereignty, in this particular, of the several states in 
their relation and intercourse with each other. The lim- 
itations and restrictions upon state sovereignty, in their 
relation to and with each other, imposed by the constitu- 
tion of the United States, are not designed, and do not 
operate, to create a dependence, or condition of infe- 
riority of one state upon, or in comparison with another. 
They were intended to uphold individual right, to secure 
to the citizens of every state equal privileges and immu- 
nities throughout the several states. The citizens of this 
country in many particulars, and so far as they owe alle- 
giance to the federal government, are regarded as one 
community, as subjects or citizens of one and the same 
government ; and to the extent of such allegiance they 
are not, and cannot be made responsible to any other 
power or control. In other particulars, they are subject, 
and owe allegiance to, the state in which they reside. 
The propriety and advantage of this twofold allegiance 
is manifest every day and every hour, in all the business 
operations, and in all the social relations of the commu- 



THE SCIENCE OF GOVERNMENT. 293 

nity. The citizens of Massachusetts or of any other state, 
would be embarrassed in their traffic, would be deprived 
of many advantages which they now enjoy, if compelled 
to confine themselves or their business within and to the 
limits of the state, in which they are, except so far as the 
other states should voluntarily, and as matter of grace, 
concede to their wishes. If a citizen of a foreign coun- 
try shall attempt to assert any right in the courts of a 
state, or of the United States, independent of treaty 
stipulation, he will do so, in consequence of a comity 
extended to him ; and he must be content to receive such 
law as the court before which his rights shall be depend- 
ing, shall be able or willing to administer. Not so when 
a citizen of one state litigates his rights in the courts of 
another state, or in a court of the United States. In such 
case the citizen pursues his remedy as matter of right, 
and he is entitled to the law of the state in which he liti- 
gates, and to the law of the United States, so far as they 
may respectively be applicable. He is entitled to the 
law of the two sovereignties under which he lives, so far 
as the one or the other may be applicable ; in other 
words, he is entitled to the law of our system of govern- 
ment. The union must, therefore, be regarded as a matter 
of necessity ; as a means, and the only secure means of 
self-preservation. If the union had not been established, 
if our system of two sovereignties had not been adopted, 
the several states could not, against themselves and 
against the world, have maintained their relative rank 
and position. A despotism, or absolute government, ex- 
tending over the entire territory, unless the conclusions 
which may be deduced from the history of other systems 
be fallacious, must have been the result. This subject, 
when reference to the dangers incident to our system 
shall be made, may be resumed. The several states and 
their citizens have a relation, also, to the territories of the 



294 THE SCIENCE OF GOVERNMENT. 

United States, and to places within the several states 
which may have been ceded to the United States, for 
forts, arsenals, and other public purposes connected with 
the federal government. This relation is not the same as 
that which exists between the several states. The terri- 
tories of the United States, as has been shown, are exclu- 
sively under the control of the federal government, and 
under such laws as congress may make or permit to be 
made therein. This power is limited only by the consti- 
tution ; and congress can exercise its discretion, except so 
far as the constitution may restrain its exercise. This 
discretion may be, and in fact is, modified by public 
opinion. Congress cannot, by its legislation over a terri- 
tory of the United States, disregard or violate the consti- 
tution ; and by implication not to be resisted, it cannot 
establish any government except such as may, under the 
constitution of the United States, be regarded as republi- 
can. If a citizen of one of the several states shall 
change his residence to a territory of the United States, 
he does not take with him the law of the state from 
which he recedes. He takes, upon his arrival within the 
territory, the law which he finds in force ; he must submit 
to the law of the territory. This law of the territory, 
however made, is the law of the United States, and not 
the law of any individual state, or of any number of 
states as sovereignties. In respect to places within' a 
state, which may have been ceded to the United States, 
the law of the federal jurisdiction has exclusive force and 
effect, except so far as the state in its cession may have 
reserved its rights. In the cessions which have been 
made, the rights reserved generally consist in a permis- 
sion to the state and to its officers, to serve its process in 
the place ceded, for the enforcement of obligations aris- 
ing from transactions occurring without the place ceded. 
The object of such permission or reservation is, to prevent 



THE SCIENCE OF GOVERNMENT. 295 

the establishment and existence of places, by a resort to 
which, individuals might otherwise escape from their alle- 
giance and responsibility to a state and to its laws * 

Another description of territory is worthy a passing 
observation ; the District of Columbia. Every govern- 
ment, however invisible and intangible it may be, must, 
for many purposes, have locality. Those who framed the 
constitution of the United States, supposed, that the 
national government, so far as it required locality, 
appropriately might and should be without the jurisdic- 
tion or limit of any and of every state government. It 
was also considered expedient, by those who selected 
the seat of government, that the place should be some- 
what isolated, and free from the excitements which more 
or less frequently are produced in every large com- 
munity. External sudden influence was to be avoided 
and resisted. This district is under the exclusive control 
of congress. Its laws and its courts are subject to the 
action of the federal government. The people of the 
district are allowed to have certain municipal corpora- 
tions, to establish their laws, and generally to manage 
their private affairs, so far as they may, without interfer- 
ing with the laws and purposes of the federal govern- 
ment.f 

* The United States may have in its possession a tract or parcel of land for 
a fort, arsenal, or navy yard, over which it may exercise exclusive power, exclud- 
ing all state officers and state process. It may have such land and exclusive 
control, save only the existence of a license or authority in a state to enter the 
same, by its process and officers, for a particular and prescribed purpose. This 
furnishes an analogy which will aid in a correct ascertainment, or perception of 
the symmetry with which two sovereignties may exist, at the same time, etc., for 
different purposes. 

f The District of Columbia was taken in part from Virginia, in part from 
Maryland, under a stipulation that the then existing law of Virginia should 
be applied and continued as the standard of right, over the part taken from 
Virginia, the law of Maryland over that taken from it, until congress should 
change, and under a clear implied undertaking, that private property and 
right should be protected and preserved. 



296 THE SCIENCE OF GOVERNMENT. 

The people of the District of Columbia have no repre- 
sentative in congress, and cannot have; they have no 
participation in the choice of the officers of the federal 
government, and cannot have ; they have no delegate, 
and in this respect they are not so favored as are the 
people of the territories ; they have no absolute or con- 
trolling influence or voice over the laws, or the law- 
maker to which they are subject. The right of suf- 
frage, except in reference to their municipal officers, 
has not been conceded to them, and beyond such limit 
the right cannot be conceded. The denial of these po- 
litical rights extends only to the permanent residents 
within the district. The members of congress and the 
executive officers of the national government are citizens 
of the several states from which they are temporarily sent 
by their constituents, and they severally retain their rights 
of citizenship. Those who are deprived of these rights by 
a voluntary adoption of the district as a place of resi- 
dence, are compensated by the supposed advantages of a 
residence near the government. I have endeavored to 
present to your minds the different relations growing out 
of and existing under our system. The details may, per- 
haps, be considered complex; the principle by which 
these details are regulated and made available to the 
purpose contemplated, cannot be so regarded. If I have 
succeeded in my effort, even partially, you will perceive, 
that the two sovereignties of which I have spoken, 
the state and the federal, considered separately, are im- 
perfect ; neither is adequate, as now constituted, by its 
own power to accomplish all the purposes for which 
government is essential. Each has its own appropriate 
trusts and duties defined in its charter or constitution ; 
each is supreme and independent of the other as a gene- 
ral proposition. 

A merchant or other individual may employ one per- 



THE SCIENCE OF GOVERNMENT. 297 

son to act as agent in the disposition of a house, he may 
employ another to manage a commercial operation. 
Upon the same principle, the people of the United States 
may employ, and they have employed, two agents or sove- 
reignties, each intrusted with certain duties, by the sepa- 
rate and harmonious action of which all the trusts of 
government are performed, and the union, known as the 
United States, so long as its citizens are faithful to them- 
selves, will have no political compeer. 



LECTUEE XI. 



REVOLUTION. — AMENDMENT. — INSTRUCTION. — NULLIFICATION. — SECESSION. 

STATE RIGHTS. 



In political discussions, in discussions which appertain 
to the conduct and acts of government, it is common to 
refer to a supposed right of revolution, meaning thereby 
a right to resist • and, if essential to the views and pur- 
poses of those who set up such right, to subvert, to put 
down the constituted authorities. In relation to every 
government, the presumption, in the first instance, is in 
favor of its legality ; the presumption is, that it origi- 
nated in the consent, express or implied, of those subject 
to its jurisdiction, and that its conduct is in conformity 
with the law of its creation. The legal presumption, in 
the absence of proof to the contrary, in relation to the 
deportment of public and of private individuals, is, that 
they perform their duty. Fraud, wrong, and oppression 
are not to be assumed ; those who aver their existence 
are bound to show it. It is reasonable to presume the 
existence of integrity, unless some fact can be adduced, 
having a reasonable tendency to show, in a particular 
transaction or matter, that it has no existence. The 
American colonies admitted and acted upon the cor- 
rectness of this suggestion. The declaration of indepen- 



300 THE SCIENCE OF GOVERNMENT. 

dence, which was made by them, wherein they declared 
themselves absolved from the British crown, enumerated 
with precision and distinctness the wrongs and injuries 
which had been imposed upon them. It was assumed, 
that a decent respect to the opinions of mankind required 
an exhibition of the causes of discontent. 

Whenever a government is established by the consent 
of the people, it is in the nature of a contract or obliga- 
tion, voluntarily assumed between the government and 
those by whom it was established. In such case, good 
faith requires that the duties and trusts of the govern- 
ment, on the one side, should be performed, and an obe- 
dience on the other, to the obligation assumed, should be 
conceded. If this be not so, as a primary proposition, 
civil society cannot be progressive ; its objects cannot be 
attained ; but a general state of anarchy and confusion 
must exist. This theory assumes that government will 
perform its duty, will discharge its trusts. A slight sur- 
vey of history will exhibit evidence sufficient to authorize 
the declaration, that governments have not always per- 
formed their obligations ; it will also show, in many in- 
stances, that government has been the instrument of gross 
oppression and injustice ; it has enslaved its own people, 
and sought to enslave others. The people have often 
submitted patiently to wrong and oppression, forgetful of 
their condition, heeding only the external power and 
dignity which appertained, as they supposed, to their 
country and its leaders. In such instances of oppression, 
you will ordinarily perceive, in the character of the peo- 
ple, a want of intelligence, of education, of moral power. 
No law, human or divine, can require a community to sub- 
mit to continued wrong and degradation ; to see, day after 
day, their earnings seized by government, and applied to 
sustain its ambition, to enlarge its power, regardless of the 
rights and immunities of the people. It must, therefore, 



THE SCIENCE OF GOVERNMENT. 301 

be conceded, that in some cases and under some circum- 
stances, the right or power of revolution may be exercised ; 
it may become a solemn duty to exercise it. The sup- 
posed right has frequently been exercised, in some in- 
stances by the overthrow and dethronement of a parti- 
cular individual or class of individuals, substituting 
another individual or class of individuals, without mak- 
ing any change in the form or system of government. In 
other cases, those in power have been displaced, and the 
system has been abolished and a different one substituted. 
A difficulty and embarrassment does and always must at- 
tend this right, which arises from the fact, that there is 
not a fixed standard or rule, by which the propriety of 
its exercise can be determined. It cannot with propriety 
be said, that a majority of a people may, as mere matter 
of caprice, without cause, overturn and subvert the gov- 
ernment under which they live. Such theory must be 
regarded too broad, too extensive; because, if correct, if 
sustained, it destroys all civil society, all organization. 
Such theory assumes that government is not essential ; 
that it may be put down at any moment, and the rights 
upheld thereby destroyed. The power of revolution is 
an extreme right, to be exercised only when the govern- 
ment, from corruption, imbecility, or other cause, shall 
fail to afford protection and security to private right, shall 
fail to accomplish the purpose of government, shall dis- 
regard its trusts, and after all reasonable efforts to obtain 
redress and correction shall be unavailing. Every slight 
abandonment or neglect of duty, cannot authorize a state 
of anarchy and confusion, or the overthrow and overturn 
of a community, and the destruction of its institutions. 
In such case, the wrong to be redressed, the injury to be 
compensated, will not authorize a remedy so dangerous, 
so severe. The evidence and experience derived from 
history is, that revolutions often end in the substitution 



302 THE SCIENCE OF GOVERNMENT^ 

and creation of a power more to be dreaded than the one 
displaced. It is also equally apparent from the history of 
the past, that the rights of the people may, under some 
circumstances, be asserted successfully against the gov- 
ernment by the moral power of the people. The English 
government, next to our own, is to a much greater extent 
influenced by and subject to the power of the people 
than any other, and their rights, to the extent which they 
have been conferred, are so secure as are our rights. 
The English government has been modified and changed, 
from time to time, in many of its features, and its admin- 
istration has been more or less in conformity with pub- 
lic sentiment, and this must continue in its future pro- 
gress. These changes have been produced by the moral 
power of the people. Declarations or charters of right 
have frequently been made and conceded, by which the 
power and influence of the people have been: enlarged, 
and their rights rendered more secure from the power of 
the government. Governments of an absolute and des- 
potic character have, in some instances, yielded to the 
moral power of the people. Instances of concession by 
government to its subjects are numerous. The lesson 
which they teach is of the utmost value. These conces- 
sions have been the result, the effect of an adequate 
cause. Whenever and wherever they have been made, 
they have resulted from, and have been produced by, 
an increased elevation of the people ; by an improve- 
ment in their character ; in a single word, by an in- 
crease of education. This education has not been ac- 
quired altogether from books or from public journals, 
although these have done much. It has been, to a far 
greater extent, acquired from a practical knowledge of 
men, of things, of moral and political right, deduced by 
a people from their traffic, commerce, and association 
with the people of other countries, and of other govern- 



THE SCIENCE OF GOVERNMENT. 303 

merits. In the great work of extending practical knowl- 
edge, our institutions and our system, through its people, 
have done much ; and so long as they exercise the influ- 
ence of their habits and modes of thought, passively and 
with an avoidance of all improper interference with the 
people or institutions of other countries, it will produce 
a moral power more potent than all our arms can exert. 
If these suggestions are sound, you will perceive that a 
moral, well educated people cannot be enslaved, or com- 
pelled to hold their reasonable rights at the will of any 
government. You will also perceive, that moral revolu- 
tion is easier and more successful than a revolution by 
force can be ; that moral revolution should be sought and 
adopted as the means of the correction of wrong and the 
establishment of right, until, by repeated effort, it shall 
be found inadequate and impracticable. The propriety 
of forcible revolution is more or less dependent upon the 
construction and character of the government against 
which it is proposed to exercise the power. The inability 
of a system to accomplish its purpose, by the protection 
of private right, may arise from its construction, from 
the want of departments and institutions. A govern- 
ment whose discretion is unlimited, will not ordinarily re- 
gard the interest and welfare of the people as paramount 
to all other considerations. It will regard itself and its 
purposes, as the essential matters to be established and 
protected by the use and instrumentality of the people. 
A government whose duties are performed by the aid of 
independent, permanent departments or institutions, is, to 
the extent of the power intrusted to such departments, 
constantly controlled by the checks which they impose ; 
and, so long as those who administer these departments 
are faithful, they constitute a barrier between the govern- 
ment and the people. The origin of the government 
sought to be revolutionized, is another fact or circum- 



304 THE SCIENCE OF GOVERNMENT. 

stance to be regarded. A people may well and fitly re- 
sist a government established by usurpation, in opposition 
to and in defiance of their will, against their consent, ex- 
press or implied, when they may not resist one to which 
they may have given assent. It should also be remem- 
bered by those who counsel revolution, that they propose 
to take the law into their own hands, and to adjudicate 
between the government and themselves upon their sup- 
posed rights, without the intervention of the other con- 
tracting party in interest. I need not say, that a judge 
of and in his own cause, may be unsafe. 

I have referred to the subject of revolution, and to the 
several principles applicable thereto, for the purpose of 
saying, it is not applicable to our system of government, 
in the same sense and to the same extent, as it is and 
may be, to systems of a different construction. The 
science of government, as exhibited in the institutions of 
the United States, does not contemplate or regard the 
power of revolution as one of its elements. Our system 
was created and established by the people. It consists of 
different sovereignties, of departments, and of institu-* 
tions. These sovereignties, these institutions are managed, 
their trusts are performed, by individuals selected by the 
people for a certain prescribed term of time. The 
administrative power, by which term I mean the legisla- 
tive and executive departments of the several states, 
passes at short intervals of time, from one person or class 
of persons, to another individual or class of individuals. 
This change, in many of the state governments, is annual, 
and in all it is frequent ; so that the people have constant 
opportunity, by a change of men or change of officers, 
to avoid corruption or incompetency or carelessness, so 
far as the same may result from individuals, who for the 
time being may be charged with the trusts of govern- 
ment. From this fact, you will perceive that revolution 



THE SCIENCE OF GOVERNMENT. 305 

is not essential to the people, or to a maintenance of their 
rights and liberties, so far as they may be disregarded or 
endangered by the individuals in power or place. These 
individuals, in most cases, are liable to be removed by 
impeachment, or other mode of removal, if faithless or 
incompetent ; and so long as they remain in office are 
subject to the charters and constitutions under which 
they act, as a limit within and by which they are bound. 
This fact is true in relation to the federal government. 
The legislative department, in one branch, which is the 
popular, and in some respects the most important, may 
be changed every two years ; the other branch, the senate, 
is partially changed every two years, and every six years 
may be filled by persons, no one of whom shall have occu- 
pied his place, under one and the same election, more than 
six years. The chief executive officer, as you are aware, is 
changed, or may be, every four years. The result of this 
arrangement is, that no person can hold office, under the 
federal government, except judicial officers, for more than 
six years, against the will of the people. The persons in 
office, upon cause shown, may be displaced in less time; 
and all judicial officers are subject to impeachment and 
removal for corruption ; so that the people, without forci- 
ble revolution, are secure in their rights, if they are true 
to themselves. If the system does not accomplish the 
purpose sought to be attained by its establishment, it 
may be modified and changed by amendment. The sev- 
eral state constitutions contain provisions for their amend- 
ment. In the constitution of Massachusetts, as it now is, 
it is declared, that any specific and particular amendment 
or amendments, may be proposed in the general court, 
and if agreed to by a majority of the senate and two 
thirds of the house of representatives, they are entered 
on the journals of the two houses, and referred to the 
general court then next to be chosen, and they arc pub- 

39 



306 THE SCIENCE OF GOVERNMENT. 

lished for the information of the community. If the 
proposed amendments shall again be approved by a ma- 
jority of the senate and by two thirds of the house of 
representatives, they are proposed to the people for their 
consideration ; and if approved by a majority of the legal 
voters, they thereupon become parts of the constitution. 
This is a peaceful, quiet, and effectual legal revolution or 
change of the system of government, to the extent of 
the amendments which may be adopted* The provision 
to which reference has been made, exhibits certain gene- 
ral principles, which are in harmony with every part of 
the system. These principles recognize the power of the 
people to protect themselves ; they induce to the conclu- 
sion, that the system of government is of their creation, 
is for their benefit, and may be made to correspond with 
the progress and exigencies of society ; they also conduce 
to another result, which is, that changes in the funda- 
mental law should not be rashly or hastily made, that no 
* sudden passion or caprice should induce change. It is also 
apparent, that the people exercise the power of amendment 
to some extent, indirectly, through the intervention of their 
representatives.^ In New Hampshire, the opinion of the 
people as to the propriety of amending its constitution, 
is taken every seven years ; if a majority of those who 
vote are in favor of an amendment, a convention is or- 
ganized to suggest and report the amendments which in 
its opinion should be made ; and if they shall subsequently 
be adopted by a two thirds vote by the people, they 
become effectual as a part of the constitution. The con- 



* Any and every other mode of amendment is illegal, is a clear violation of 
the constitution, and a subversion of the fundamental law. 

f This provision was introduced from an impression, that the representatives 
of the people would be in possession of information, derived from every part of 
the commonwealth, in relation to the working of the system, and would be compe- 
tent to discuss in a dispassionate manner the fitness of any proposed amendment. 



THE SCIENCE OF GOVERNMENT. 307 

stitution of the United States may be amended. Con- 
gress, whenever two thirds of both houses shall deem it 
necessary, shall propose amendments to this constitution, 
or, on the application of two thirds of the several states, 
shall call a convention for proposing amendments, which, 
in either case, shall be valid to all intents and purposes, 
as part of the constitution, when ratified by the legisla- 
tures of three fourths of the several states, or by conven- 
tions in three fourths thereof, as the one or the other 
mode of ratification may be proposed by the congress, pro- 
vided, (among other things,) that no state without its con- 
sent, shall be deprived of its equal suffrage in the senate* 
The power of amendment is carefully guarded, and 



* The constitution of the United States cannot, rightfully, be amended in 
any other mode. If the provision recited is directory, or if the people, acting 
upon their supposed ever present inalienable right over the government, may, 
by a majority of the voters throughout the United States, or by majorities in a 
major part of the several states, disregard any part of the provision, they may 
disregard the whole, and by their action may disfranchise some one or more of 
the smaller states, by taking away their equal right of suffrage in the senate of 
the United States. The writer is not aware that such theory has ever had, or 
can have any plausible ground for its support. Mr. Justice Story, in his com- 
mentaries upon the constitution, referring to the clause providing for its amend- 
ment, says, " Upon this subject little need be said to persuade us at once of its 
utility and importance. It is obvious that no human government can ever be 
perfect, and that it is impossible to foresee or guard against all the exigencies, 
which may in different ages require different adaptations and modifications of 
powers to suit the various necessities of the people. A government forever 
changing and changeable, is indeed in a state bordering upon anarchy and con- 
fusion. A government, which in its own organization provides no means of 
change, but assumes to be fixed and unalterable, must after a while become 
wholly unsuited to the circumstances of the nation, and it will either degenerate 
into a despotism, or by the pressure of its inequalities bring on a revolution. It 
is wise, therefore, in every government, and especially in a republic, to provide 
means for altering and improving the fabric of government, as time and expe- 
rience, or the new phases of human affairs may render proper, in order to pro- 
mote the happiness and safety of the people. The great principle to be sought 
is, to make the changes practicable, but not too easy ; to secure due deliberation 
and caution ; and to follow experience, rather than to open a way for experi- 
ments, suggested by mere speculation or theory." These observations are 
replete with sentiments of patriotism ; they exhibit the profound knowledge and 



308 THE SCIENCE OF GOVERNMENT. 

cannot well be used to the injury of the community, un- 
less it shall become careless and heedless of its rights and 
its duties. Notwithstanding the power is conferred in 
general terms, and, if exercised in the mode prescribed, 
seems to be boundless, it should be regarded as a limited 
and qualified right, not to be exercised to the destruction 
of private right, or in derogation of the fundamental 
principles which are proclaimed in the bills or declara- 
tions of right. The power of amendment was designed 
to sustain and uphold our political and social institutions, 
and not for the purpose of destruction, or with intent to 
procure their entire subversion. The power, so far as the 
several states are concerned, is by implication so far re- 
strained by the constitution of the United States, that no 
state can rightfully so amend its constitution as to estab- 
lish thereby any form of government, which is not in 
form republican. The federal constitution, when sub- 
mitted to the people for consideration, was opposed. It 
was adopted in three states unanimously : Delaware, New 
Jersey, and Georgia. The instrument became operative 
by the vote of New Hampshire, the ninth state which ac- 
cepted it, by a vote of fifty-seven in favor, and forty-six 
against it. Many of the states, at the time of their rati- 
fication of the instrument, suggested and recommended 
amendments, some of which were subsequently adopted, 
in the mode prescribed for the adoption of amendments, 
and became part of the constitution. The proposition to 
amend was made in the first congress by Madison, who 
urged the necessity of some speedy action to meet the 
expectation, and to quiet the impatience of the numerous 



sagacity of their eminent author. Limitations of the mode in which amend- 
ments may be made, are no less or more obligatory upon the people, than are 
limitations upon the subject-matter of amendments. Provisions for amendment, 
contained in a state constitution, so well as those in the constitution of the 
United States, should be adhered to, and should be exercised with fidelity. 



THE SCIENCE OF GOVERNMENT. 309 

friends of amendments. Some of the members opposed 
all action upon the subject, until the instrument had been 
in operation for a period sufficient to determine its capa- 
city and fitness. This proposed delay was successfully 
resisted. The friends of amendment did not propose to 
reconsider or change the general frame and structure of 
the system ; but from motives of policy, and for the pur- 
pose of improvement, suggested several provisions, de- 
signed to insure the protection of personal rights. One 
proposition of amendment, of an important bearing and 
character, was made, which was rejected. It was pro- 
posed to amend, so as to confer upon the people " the 
right to instruct their representatives." Several members 
advocated this amendment, with an understanding on their 
part that it would not imply, on the part of the repre- 
sentative, any obligation to obey. Mr. Gerry, a distin- 
guished and patriotic citizen, advocated it under such an 
impression, in relation to its force and effect, if adopted. 
Those who favored it, generally considered it absolutely 
necessary, and strictly compatible with the spirit and 
nature of the government. It was urged, that all power 
was vested in the people ; that the system contemplated 
a government of the people, a democracy ; that the peo- 
ple, for convenience only, had agreed that their represen- 
tatives should exercise a part of their authority ; that a 
denial of the power of the people to instruct their agents, 
must be regarded as a denial of one of their inalienable 
rights. These suggestions were resisted, and their pur- 
pose defeated. It was urged by those who entertained 
different views, that a right to instruct a representative, 
if it implied no obligation to obey, was idle and useless ; 
that the people without such provision, were at liberty to 
express their opinion of the measures, of the conduct of 
government, and that such opinion must of necessity 
command the consideration and respectful attention of 



310 THE SCIENCE OF GOVERNMENT. 

the representative. If the proposed amendment should 
be regarded as imposing an absolute obligation of obedi- 
ence, it would be pernicious, and ought not to be adopted. 
In opposition to the proposed amendment, Mr. Madison 
said, Suppose a representative is instructed to violate the 
constitution ; is he at liberty to obey such instructions ? 
Suppose he is instructed to support certain measures, 
which, from circumstances known to him, but not to his 
constituents, he is convinced will endanger the public 
good, is he obliged to surrender to their judgment his 
own ? Suppose he refuses, will his vote be the less valid, or 
his constituents less bound to yield that obedience which 
is due to the laws of the union ? If his vote must inevi- 
tably have the same effect, what sort of a constitutional 
right is this, to instruct a representative who has a right 
to disregard the order if he pleases ? Those of a different 
opinion ask, if the sovereignty is not with the people at 
large. But is it to be inferred, that the people, in de- 
tached bodies, can contravene a law established by the 
whole people ? My idea, (says Mr. Madison,) of the sove- 
reignty of the people, is this, the people can change the 
constitution if they please ; but while it exists, they must 
conform to its provisions. I do not believe that the in- 
habitants of any district can speak the voice of the peo- 
ple ; so far from it, their ideas may contravene the sense 
of the whole people ; and hence the doctrine of the bind- 
ing force of instructions is of a doubtful, if not of a dan- 
gerous character. In thus saying and in thus voting, Mr. 
Madison acted upon his own responsibility and judgment, 
in opposition to the supposed sentiments of the state which 
he in part represented, and in opposition to the sentiments 
of the political party to which he belonged. The supposed 
right of instruction had its origin with the commencement 
of our system, and has been the subject of continued discus- 
sion. That it does not exist as a matter of right, may be in- 



THE SCIENCE OF GOVERNMENT. 311 

ferred from the fact, that it is not found in the constitution, 
and from the failure of the effort made to have it inserted 
as an amendment. The principle which has been relied 
upon in its support, is sound, and cannot successfully be 
denied or controverted. Whether the principle by which 
the right of instruction is sought to be maintained can 
be applied, is an entirely different and distinct question. 
It is true, that the principal may instruct his agent ; that 
an agent is bound to follow the instructions of his prin- 
cipal. No position more accurate or true can be stated. 
It is equally certain, that a principal may delegate certain 
authority to an agent, to accomplish certain purposes, 
and may clothe such agent with irrevocable power, or 
with power revocable, under certain limitations. In other 
words, a principal may if he chooses, confer upon an 
agent powers which, by his own consent and agreement, 
he will not and cannot withdraw. The right of instruc- 
tion is to be determined by an application of these prin- 
ciples, as they may or may not apply to our system of 
government. It is and frequently has been said, that 
the representatives of the people and the officers of gov- 
ernment, are the servants and agents of the people, and 
as such are bound to regard their will, at all times and 
under all circumstances. In other words, that the people 
are above all law. This is not true, however unpleasant 
the declaration may be. 

The representatives of the people and the officers of 
government, are the servants and agents of the people to 
perform certain political trusts, in conformity and in 
accordance with certain charters or constitutions which 
the people have voluntarily established as their guide, 
and as the source from which their powers are derived, 
and are to be ascertained. It is the prerogative of Ame- 
rican citizens to say, that they live under a system of 
law; that their liberty is regulated by law; but they 



o 



12 THE SCIENCE OF GOVERNMENT. 



cannot add, that it is their prerogative to disregard the 
law, simply because they are its founders and authors. 
Apply the principle which I have endeavored to illustrate 
to the case of a magistrate or judge : the magistrate is a 
servant and representative of the people, but he is not 
and cannot be bound by their instructions, except so far 
as they may be contained in the constitution and laws, 
for the construction of which he is the agent. Equally 
true it is of the representative, and of every officer 
known to the law. They and each of them are bound, 
in the discharge of their respective trusts, by constitutions 
and by the law of the land. The people may express 
their opinions, may discuss the conduct of their servants 
and agents, and, at intervals of time, displace them ; 
and they may enlarge or diminish their power, by amend- 
ing the system, in the mode prescribed, under which they 
act ; in no other way can they instruct or control them. 
They have no occasion to instruct or control them in any 
other way. The powers of amendment, of election to 
office, which the people undoubtedly possess and enjoy, 
are ample, as means of correcting all evils which can re- 
sult from any deficiency which may be discovered in the 
construction of government, or which may occur from the 
corruption or incompetency of individuals selected to dis- 
charge its trusts. The power or supposed right of 
instruction is more plausible and is less dangerous in its 
tendency, than another supposed right, somewhat similar 
in its character, which has frequently been asserted 
and encouraged. I refer to the assumed power of nulli- 
fication, which some politicians have advocated. The 
doctrine which, under this term, has been set forth, had 
its origin in a resolution of the Assembly of Virginia. 
In the resolution referred to, it is declared, " that the 
powers of the federal government, resulting from the 
compact to which the states are parties, are limited by 



THE SCIENCE OF GOVERNMENT. 313 

the plain sense and intention of the instrument consti- 
tuting that compact, and they are no farther valid than 
they are authorized by the grants enumerated in that 
compact ; and that in case of a deliberate, palpable, and 
dangerous exercise of other powers not granted by the 
said compact, the states who are parties thereto have the 
right, and are in duty bound, to interpose for arresting 
the progress of the evil, and for maintaining within their 
respective limits the authorities, rights, and liberties ap- 
pertaining to them." This declaration is an able, ingen- 
ious, and fascinating definition of the right or power which 
it upholds. It is so mingled with truth, that its fallacy may 
easily escape observation. It contains three distinct pro- 
positions ; two of which are entirely without any consti- 
tutional or reasonable intendment in their favor, and can- 
not, so long as the union and its system shall remain, be 
sustained ; the third is sound, and has always been con- 
ceded. The declaration assumes, that the constitution of 
the United States is a compact between the several states, 
acting as independent sovereign contracting parties ; that 
the federal government, independent of such compact, 
has no power or existence. The second proposition is, 
that the powers of the federal government are limited ; 
that it is intrusted with certain specified trusts, beyond 
which it cannot rightfully act ; that these trusts are enu- 
merated and defined in a paper which the declaration 
designates a compact. The third proposition or principle 
is a logical and necessary result of the first, and it is, that 
the several states may for themselves determine, whether 
the federal government has or has not in any case tran*. 
scended its limited powers ; and if it has so transcended- 
its power, in the opinion of any state, such state may dis- 
regard and nullify the action of the federal government. 
In other words, a state sovereignty may submit to the 
power of the federal government at its election. This 

40 



314 THE SCIENCE OF GOVERNMENT. 

theory was condemned and rebuked by President Jack- 
son in terms and in tone not to be forgotten. The pro- 
clamation which he made in relation to the principles 
deduced from the Virginia resolution, will be remem- 
bered, and its influence will be felt here or elsewhere, 
when all his battles, all his victories shall have faded in 
the memory. The fallacy of the declaration to which 
reference has been made, consists in an assumption, that 
the constitution of the United States is a compact, treaty, 
or agreement between the several states as sovereignties ; 
and that it is not an independent system of government, 
supreme within its prescribed limits. When sovereign 
powers contract with each other, they must, in the na- 
ture of things, determine on each and either side, whe- 
ther the other may have performed its obligation, and if 
not, to redress itself. No tribunal or congress of nations 
has been established by which disputes and disagreements 
between sovereign states can be adjudicated ; and, in the 
absence of such power or institution, they must decide 
their own rights for themselves. This principle has no 
application, and cannot be applied to a system of gov- 
ernment which has provided departments and machinery, 
by which its rights and the rights of its citizens are to be 
determined. The constitution of the United States is not 
a compact between states ; it is a system of government, 
established by the people for their benefit, with the con- 
sent and approbation of the several states, which consent 
cannot be withdrawn or evaded until the system itself, 
by force or other means, shall cease to exist. This truth 
is prominently and distinctly stated and recognized in 
the constitution of the United States. It has been recog- 
nized by the supreme court of the United States in many 
and in all of its judgments, whenever the subject has been 
matter of discussion. These judgments, in many instances, 
have been pronounced with great force and ability by 



THE SCIENCE OF GOVERNMENT. 315 

the late most eminent chief justice of the United States, 
the ablest jurist which Virginia has ever had, of whom, 
and of whose memory she, with her sister states, may 
justly be proud. The second element contained in the 
declaration to which reference has been made, is true. 
The federal government is a government of limited 
power, which it cannot rightfully transcend or disre- 
gard. Its powers are to be ascertained by a resort to 
the constitution of the United States, not as a compact 
or treaty, but as a system of government • and they are, in 
the language of the resolution of Virginia, limited by the 
plain sense and intention disclosed in and by the instru- 
ment. In this particular the resolution is true, and cannot 
successfully be repudiated or denied. Suppose the gov- 
ernment, in some instance, has passed, or shall pass be- 
yond its limit, who is to determine the existence of the 
error, of the evil, and correct its effect ? The constitution 
has provided for this supposed contingency by conferring 
upon the judiciary of the United States complete and full 
jurisdiction over all rights, all obligations or wrongs which 
can or may exist or arise under or against the constitution 
of the United States, or under treaties or laws made or 
assumed to have been made under or against its autho- 
rity. This is a peaceful, constitutional, and adequate 
remedy, under the federal, as it is, in matters appertain- 
ing thereto, under the state sovereignty. In the hands 
of an intelligent, learned, and honest judiciary, the rights 
of the people always have been, and always will be safe. 
It is in the power of the people at all times to have an 
intelligent, learned, and honest judiciary. They cannot, 
therefore, have an occasion for aid from any false or dan- 
gerous assumption of power. 

* I have referred to this subject for the purpose of im- 
pressing upon your minds, that our system of govern- 



316 THE SCIENCE OF GOVERNMENT. 

nient is a system of institutions, of departments, of law, 
in and by which your rights are upheld. 

A supposed right of secession has been occasionally set 
up by politicians. It has not acquired so much celebrity, 
and has not been advocated with so much power or 
ability, as have been exhibited in support of nullification. 
If either of the theories can be sustained, upon logical 
or political considerations, secession has the advantage. 
One of these theories assumes, that a state, by virtue of 
its supposed compact, may continue in the association, as 
a member or contracting party, and may yield obedience 
to the laws and institutions of the association, so far and 
so long as they may be convenient and agreeable, and 
may resist and reject its laws and institutions whenever 
they may be considered inconvenient and disagreeable. 
Secession, as generally understood by its advocates, is a 
right in an individual state sovereignty to withdraw from 
its supposed compact with the association, and unfold its 
banner, as an independent sovereignty, free from every 
restraint- by, or obligation to, the union, or to the other 
states composing the union. This theory does not regard 
the federal government as a system established by the 
people independent of state sovereignty, although with 
the consent of the several states ; but proceeds upon the 
ground, that the several states by becoming members of 
the union, have temporarily surrendered some portion of 
their sovereignty, which they may resume at pleasure ; 
that the state governments, in their relation to the union, 
are not limited jurisdictions, charged and intrusted only 
with the execution of a certain portion or quantity of 
political trusts. If such be the true theory of the system, 
secession is an undoubted right, and may be exercised by 
any and by every state at will. The federal sovereignty, 
in this view, is altogether ideal and fallacious ; and we 



THE SCIENCE OF GOVERNMENT. 317 

live under one, and only one sovereignty or jurisdiction, 
which is that appertaining to the state. On the other 
hand, if the system be such as I have attempted to show, 
secession has no existence as a right, and cannot be exer- 
cised by any state, or by any number of states.* 

The constitution of the United States, as I have often 
remarked, was established by the people, as and for a gov- 
ernment of the people, and not as a government of states 
or sovereignties. The several states were not obliged to 
surrender a portion of their sovereignty to the people, 
and thereby suffer or permit a transfer of such surren- 
dered portion of their powers to another institution or 
sovereignty. The doctrine of secession proceeds upon a 
supposition, that the depository of power under our sys- 
tem is nominally twofold, but in fact is individual and 
exclusive in the several states. I say the depository of 
power is regarded as twofold, upon this theory, because 
the power of the union is admitted, as a rightful jurisdic- 
tion, proceeding for the time being, hand in hand with 
the several states until the state shall secede, and take 
with it all power. If I have succeeded to any extent, 
however faintly or feebly, in presenting our system, you 
cannot fail to have seen, that the depositories of power 
are three : the people, the state sovereignty, the federal 
government. These together constitute a perfect whole. 
No one of the three can enlarge its own power, or dimin- 
ish that of either of the others, so long as the system 
remains. No two of them can destroy the third, except 
by an unauthorized exercise of power which the system 
does not contemplate as a probable contingency ; which 
the people of the United States will not, permit, until 



* Those who may wish to combat the positions of the writer, may examine 
" llaide on the Constitution" and " A Disquisition on Government" by Calhoun, 
1 vol. of las Works ; neither of which sustain the undoubted abilities of the re- 
, spective writers. 



318 THE SCIENCE OF GOVERNMENT. 

their character and habits shall be entirely changed. 
These theories need only to be stated to be fully compre- 
hended, and to be rejected by every careful and patriotic 
mind. They have been produced by, and have resulted 
from, an undefined, supposed theory of state rights. 

These terms (state rights) may be used, with reference 
to the several states appropriately ; they may be used, 
and generally have been used inappropriately, and with- 
out any definite meaning. The several states have cer- 
tain powers, duties, and trusts, in relation to which they 
are independent and supreme, and are not and cannot be 
controlled in their exercise by the federal government. 
In these particulars they are responsible only to their sev- 
eral constitutions, and to the citizens within their respec- 
tive limits and jurisdiction. 

These are state rights which every citizen is bound to 
respect, which are to be sustained and upheld in the mode 
and in the manner which the system has provided for 
their protection. The United States, the union, have 
rights, which are to be upheld in the mode prescribed. 
These rights are limited, but supreme and independent 
within their limit. The rights of these two jurisdictions 
are not in opposition to, or in conflict with, each other. 
Any attempt to enlarge or magnify the rights of the seve- 
ral states or of the United States, by a diminution or 
destruction of those of the other, or to increase or extend 
either the one or the other beyond its constitutional 
limit, must be unavailing, or destructive of the system. 
The several states are not endangered, in the possession 
of their legal and constitutional rights, inasmuch as the 
federal government has no power, except such as is 
derived under an express grant, or by implication fairly 
and reasonably deduced from an express grant. If the 
terms, state rights, are used as importing the existence of 
an uncertain and unknown boundary between the several 



THE SCIENCE OF GOVERNMENT. 319 

states and the federal government, and that those who 
regard the rights of the several states are bound to 
extend the jurisdiction which they exercise, so far as 
possible • that the two governments are in fact or may be 
in a state of warfare, or contest for power, each striving 
to increase its own, regardless of the other ; they have no 
foundation in our system, in truth, or in the fitness of 
things. In this supposed sense or use they are fallacious, 
dangerous, and to be disused. If they are used as import- 
ing a declaration, that the several states have certain 
constitutional powers, supreme and independent, which 
are to be watched, sustained, and protected from encroach- 
ment, coming whence it may come, they express a truth, 
and as such are to be respected. Examine the questions 
of nullification and secession, with the aid of analogy 
derived from the common business of life. An individual 
employs two agents, or trustees, to each of which he con- 
fides some portion of his business. Neither agent has a 
right to encroach upon, or to interfere with, or to take 
upon himself the duties of the other. These agents may 
be charged with duties which the principal cannot resume, 
or which he cannot resume except under a peculiar state 
of facts provided for, by his own voluntary act. 

The people of the United States have established two 
agents, two sovereignties, to which they have severally 
confided certain trusts. They have established and given 
written instructions, in the form of constitutions; they 
have created departments ; they have provided a mode 
by which these instructions may be varied and changed. 
They have stipulated, contracted with the agents so ap- 
pointed, that the trusts so confided shall be irrevocable, 
until resumed in the mode and in the manner Avhich they 
have prescribed for their resumption. If this be a true 
and a fair statement of our system, no state can nullify the 
acts of the union ; no state can resist or secede from its 



320 THE SCIENCE OF GOVERNMENT. 

organization. The people cannot control their agents, 
except by the right of suffrage, and by the influence 
which their opinions, their moral power, may rightfully 
command ; they cannot resume their grants of power ex- 
cept by an amendment, legally made, of the instrument 
by which they may have been conferred. It may be 
suggested that the system, as I have presented it, admits 
of only one construction ; that no difference of opinion 
can exist. This is not so ; the science of government 
cannot be defined with unerring, perfect accuracy. No 
system or form of government can be perfect, or so accu- 
rate as not to admit of an honest difference of opinion, 
as to the import of its details, in every particular. Par- 
ties disagree as to the force and effect which should be 
given to this or that provision. It does not follow, 
that they do not seek the attainment of the same end, or 
that the system in its great purpose may not easily be 
understood or carried into effect. It is equally true, that 
a government may constitutionally have powers designed 
to meet the ever changing condition of civil society, which 
may or may not be exercised ; the expediency of their 
exercise may be a fair subject of discussion, and may pro- 
duce honest differences of opinion. 

In the United States, the science of government must 
be discussed. It is not a matter in relation to which a 
knowledge is, or should be confided to some select few 
individuals. The people are the source of all political 
power, and in their hands it must be productive of good 
or evil. No man can safely undertake to escape from his 
individual responsibility, or to impose upon others the 
duties of his station and condition, whatsoever it may be. 
It should also be remembered, that in this country every 
man is the founder and the architect, to a great extent, 
of his condition. Discussion must and will be had ; 
the people must act with or without knowiege ; the insti- 



THE SCIENCE OF GOVEKNMENT. 321 

tutions which they have established, furnish adequate 
means of information to all who may desire its acquisi- 
tion. These discussions have a salutary influence ; they 
serve to elicit the truth ; they afford sources of informa- 
tion useful to those charged with a performance of the 
public trusts. More than this, they produce a healthy 
action of the public mind, and give to its judgment and 
opinion, a moral force not readily resisted. In a discus- 
sion of an abstruse science, it is essential to use exact 
terms. In an examination of the physical laws of nature, 
cause and effect must ever be regarded. Equally clear it 
is, that in a discussion of any system of government, pre- 
cision in the use of language is of the utmost importance. 
It is not essential, it cannot be supposed, that the great 
body of the community can abandon their daily pursuits, 
and become accurately conversant with all the principles 
of legal science, or with all the propositions and deduc- 
tions of political economy. They can, however, acquire 
a knowledge of the principles of right, of justice. These 
principles constitute the foundation, the corner-stone of 
your system of government ; of which system, one of its 
most valuable and important features is shown in its pro- 
vision for amendment. Revolution, nullification, and 
secession are only different modes of forcible resistance 
to the constituted authorities ; they are entirely displaced, 
so far as right or necessity may be concerned, by the pro- 
vision for amendment, a quiet, humane, and effectual 
remedy, when properly applied, for the evils for the cor- 
rection of which in many systems, such forcible measures 
are and may be regarded as fit and available. In mili- 
tary language, I admonish you to stand by your arms. 
which are your constitutions and their institutions. 

41 



LECTURE XII 



TILE DANGERS AND CAUSES OF DANGER INCIDENT TO THE SYSTEM. — THE REMEDY 
OR MEANS OF AVOIDANCE. 



The construction of the system of government under 
which you live, has been presented for your considera- 
tion. Many of the prominent incidents connected with, 
or growing out of the system, have been the subject of 
reference and consideration. An endeavor has been 
made to exhibit the relation and purpose of its different 
parts. If you shall be disposed to follow out, and ex- 
amine the suggestions which have been made, although you 
may regard them, in some particulars, as unsound and erro- 
neous, you will discover at every step, the same general 
principles and object. These principles, and the purpose, 
so fir as I have been enabled to discover them, may be 
expressed in few words. An intelligent, well educated 
people, are competent to establish political institutions, 
by the means of which, and through the instrumentality 
of departments appertaining thereto, they may indirectly 
and ultimately be the source, and the agents for the ex- 
ecution of all and every political power, essential to the 
maintenance of a chastened, well regulated civil society. 
1 In any survey which you may make, of the history and 
progress of your country, of the character of those who 



324 THE SCIENCE OF GOVERNMENT. 

first landed upon a neighbouring shore, you will find 
many things worthy your respectful consideration. The 
original discovery of the country, must be regarded as an 
event or fact, the consequence of which no man can pre- 
dict. The declaration of independence, by its boldness 
and sublimity, admonished and astonished the civilized 
world, and gave to the inalienable rights of man an im- 
press and form which they had not previously attained. 
You may recur to these events with admiration, and even 
exultation. It is your privilege so to do. Mightier than 
these events, is an event which followed. Mightier than 
these was and is, the act by which the federal constitution 
disclosed the science of government, as exhibited in the 
institutions of the United States. Is the system therein 
disclosed perfect, or free from danger ? It would be pre- 
sumption to say that it is. Every system, every institu- 
tion of human invention, every individual is surrounded 
by danger, by many and constant causes of danger. 

Some of the dangers applicable to our system will be 
suggested briefly, from which you will perceive the cha- 
racter of others. They are twofold, external and inter- 
nal. The external causes of danger are remote. The 
territorial position of the United States does not invite 
foreign aggression, or render it easy. Many of the coun- 
tries and governments of Europe are territorially near 
each other ; they are obliged, therefore, to some extent, 
to guard themselves, by guarding and watching their 
neighbors ; this has induced some of them to encourage, 
and to insist upon the maintenance, between themselves, 
of a balance of power. The construction of many of the 
European systems of government affords an opportunity, 
to those who govern, to use the government and its 
power for the gratification of personal ambition. The 
dangers which surround such governments are constant, 
are imminent. The United States are not immediately 



THE SCIENCE OF GOVERNMENT. 325 

liable to similar dangers. Foreign nations being remote, 
and having trusts of their own which require attention, 
will not, under ordinary circumstances, interfere with or 
molest our country. The governments upon the conti- 
nent of North America, not subject to the federal govern- 
ment, have no inducement to make aggression upon their 
neighbor; if such inducement should hereafter exist, 
their power and ability, unless aided from abroad, is not, 
and probably may not be such as to excite uneasiness. 
Unless the United States shall undertake to exercise a 
general supervision over the affairs of foreign govern- 
ments, or shall unreasonably neglect to perform their 
duty, to maintain their own self-respect, no serious or 
important danger, or cause of danger, can arise from any 
external source. 

The internal dangers, and the sources from which such 
dangers may come, are of a more important character, 
and are more numerous. These, or some of them, will 
be suggested. Extent of territory has been often sug- 
gested as one of the circumstances or facts from which 
danger to our institutions may be apprehended. That 
the government cannot extend its protection to the ex- 
treme points of an enlarged territorial jurisdiction ; that 
the distance which must exist between cause and effect 
in an enlarged territorial jurisdiction, will operate to 
diminish the one and exclude the other from observa- 
tion. This, as a proposition considered by itself, without 
reference to other facts or circumstances, may and must 
be regarded as sound. Government must, in the nature 
of things, be limited to a territory accessible at all times, 
and over which its power may be rendered available, 
without suffering diminution from distance or delay in 
its execution. No government can safely undertake to 
extend its power over the whole globe. An effort by 
any government so to do would prove useless, and of no 



326 THE SCIENCE OF GOVERNMENT. 

avail for such purpose. A limit of territory must, there- 
fore, be applied to every government. This limit cannot 
be determined by any known fixed standard. A conti- 
nent or territory standing by itself may be managed and 
controlled by the same system or sovereignty, more easily 
than the same extent of territory can be which is in the 
immediate vicinity of territory subject to other govern- 
ments, between which there must be intercourse and re- 
lations of trade, legal or illegal. So far as proximity of 
one country to another bears upon this matter, the posi- 
tion of the territory which composes the United States is 
favorable. Many other circumstances have a bearing 
upon any determination which can be made upon this 
subject. Extent of territory may, by its magnitude, pro- 
duce a difference of climate, difference of thought, and a 
diversity of interest. The settlement of the country 
known as the United States, was not made by people of 
the same origin. Different sections of the country origi- 
nally presented this feature in our history in distinct and 
marked boundaries, which have not disappeared. When- 
ever a body of men leave the land of their birth, to com- 
mence a new work of enterprise in a foreign land, they 
may abandon their early home, but its associations, its 
recollections, and many of its institutions will continue 
to occupy the mind, and to some extent direct its 
energies in their accustomed channels. In one state, 
at least, of the union, the civil law constitutes, with few 
exceptions, the basis, furnishes the principles by which 
its legislation is modified and characterized. The law of 
France, of Spain, so far as the principles and matters of 
personal right are involved, determine, in some portion 
of our country, the ascertainment and enforcement of pri- 
vate right. In other sections of our territory, the civil 
law, the principles of the law of France or of Spain, have 
no force or abiding place. Our country also has within 



THE SCIENCE OF GOVERNMENT. 327 

its bound different climates. A result, by the law of na- 
ture which no man can control, from this fact, may be 
perceived in the habits of the people. At one extreme 
of the United States, its citizens are staid, matter of fact 
men, wrapped in a mantle of winter, which covers body 
and mind. In another, a more genial sun gives life and 
vivacity to the scenes of every hour and of every day ; 
here the present is ever more beautiful and joyous than 
an apparently unheeded, unknown future can be. 

The circumstances to which reference has been made, — 
extent of territory, diversity of habit and of interest, 
naturally must be regarded as sources from which 
danger may be apprehended. When they are consid- 
ered with reference to our system of government, with 
reference to the actual condition of the United States, un- 
less our territory shall be enlarged, and the diversity of 
habit and interest which may result from an enlarge- 
ment shall be increased and become more diverse, they 
cannot be regarded as serious cause of danger. The reason 
which induces this position is deduced from the division 
of sovereignty which our system exhibits. Our foreign 
relations are not controlled by extent of territory or by 
diversity of local interests. The federal government has 
the exclusive management of such relations. Extent of 
territory, and diversity of interest, are not applicable to 
the state governments as separate and independent sove- 
reignties. The several states each extend to a small 
territory, and the interests and habits of the people of a 
particular state are not diverse, with reference to them- 
selves ; they are so with reference to other states, so that 
these causes of danger, of apprehension, do not in fact 
exist, in relation to the state governments, by which all 
local matters are regulated. Another prominent sup- 
posed cause of danger may be found in an alleged ten- 
dency to consolidation. It has often been urged that the 



328 THE SCIENCE OF GOVERNMENT. 

federal government inclines to attain the possession of 
greater power than it can or should rightfully exercise. 
Thus far, no such intent has been carried into effect by any 
encroachment upon, or diminution of, the legitimate rights 
of the several states. Our past experience shows, that 
the federal government has been more frequently the 
object of attack than the state government. Those who 
urge consolidation as a possible or probable ground of 
danger and difficulty, do not urge the corruption of the 
people as the cause, although the theory cannot be true, 
except upon an assumption that they are corrupt or may 
be corrupted. The officers of the federal government 
are chosen by the people, or by their representatives or 
agents, over whom they have control. If the people are 
true to themselves ; if they elect competent and honest 
individuals to discharge the trusts of the federal govern- 
ment, no consolidation can take place. The several states 
cannot be deprived of their rights, their authority and 
powers cannot be diminished or transferred to another 
government, except by the action of their own citizens ; 
and it cannot well be supposed, that they will conspire or 
cooperate to destroy themselves. 

In our system of government the legislative depart- 
ment has more power than any other department. The 
individuals which compose it are more numerous than 
those of other departments, and from this and from other 
causes, are more easily corrupted. They are more 
directly within the power, and under the control of the 
people, than are the individuals of any other department. 
Their corruption, their incompetency, their inclination to 
consolidation can be prevented and corrected, if need be, 
by an exercise on the part of the people of their right 
of suffrage. 

Another barrier against consolidation is found in the 
independence, learning, and integrity of the judicial 



THE SCIENCE OF GOVERNMENT. 329 

department. All our institutions, including those of sove- 
reignty, are limited by written constitutions ; and if the 
legislative or executive departments shall attempt to 
transcend their rightful jurisdiction, they may ordinarily 
be repressed and restrained by the judicial department. 

The federal government must adhere to its system, to 
its duties, and cannot successfully usurp power, until all 
its departments shall become faithless and corrupt. They 
cannot attain such position, until and unless a large pro- 
portion of the entire people become corrupt, and willing 
to destroy themselves. The danger of consolidation, 
therefore, and of the perversion and destruction of the 
rights of the people, must be regarded as ideal and fan- 
ciful, and not substantial, inasmuch as it cannot, from our 
past history, be inferred that the people will readily be- 
come the instruments of their own destruction, of their 
own degradation. Such a result cannot be imputed to, 
or derived from, the character of the people, or their 
system. 

Another source of danger may occasionally be found 
in a resistance of some few of the populace, to law, to 
the constituted authority. It cannot be supposed, that 
the legislation of the federal or of the state sovereignty 
will always be acceptable to the entire people. In some 
instances, dissatisfaction may extend to a large proportion 
of the community. Legislation cannot rightfully be 
resisted by force, although it may be disapproved, more or 
less extensively, by this or that portion of the commu- 
nity. If any particular legislation is or may be uncon- 
stitutional, the courts of law are bound to resist and to 
reject its supposed validity, to relieve the citizen from its 
control. It may, without boasting, be said, that the judi- 
ciary of our country, state and national, has had the 
moral courage to do its duty ; and I doubt not, it will con- 

42 



330 THE SCIENCE OF GOVERNMENT. 

tinue to exhibit a fearless regard for the people and for 
their rights. 

In the course of the discussions which you have heard, 
in some few instances I have dissented from judicial 
opinion ; whenever I have so done, I have stated the fact, 
and have given the reasons of my opinion, adding that 
the adjudications of the judiciary, until changed by the 
power which made them, are to be regarded as the law of 
the land, however they may differ from my, or from 
your opinion. 

If legislation is injudicious, or in its effect unnecessa- 
rily inconvenient, or restrictive of the business and inte- 
rests of the community, the people, by its peaceable 
expression of opinion, through the press, and by means 
of private conventions and correspondence, can correct 
and control it. If public opinion so expressed shall prove 
inadequate, by the exercise of the right of suffrage, the 
people can effectually cure the evil by a change of the 
legislators, and of those who discharge the trusts of gov- 
ernment. Resistance to law by force, therefore, is not 
essential to the people, or to the protection of their rights ; 
and whenever adopted, must operate to diminish, to 
destroy, the institutions and the moral power of the peo- 
ple. I have spoken of resistance to law, regarded as a 
political matter. It is regarded by some as a moral ques- 
tion. I cannot discuss it in this aspect, except to say, 
he who regards his conscience as paramount to human 
law, assumes that the dictates of his individual conscience, 
regardless of the consciences of others, are perfect ; that 
they may, that they must be regarded by him as the cer- 
tain, well authenticated, unerring law of God ; an assump- 
tion which, in my judgment, cannot be sustained by or 
deduced from any sound theory of religion, natural or 
revealed. 



THE SCIENCE OF GOVERNMENT. 331 

The admission of new states may produce difficulty and 
danger. This may arise in several ways. A new state 
cannot come into the union, except its constitution shall 
conform to that of the United States, and shall be ap- 
proved by the other states, acting through their represen- 
tatives in congress. A new state naturally is inclined to 
suit itself in its local institutions, and is jealous of inter- 
ference by or from its neighbors. This was distinctly 
perceived when Missouri was admitted ; the danger, how- 
ever, passed away, notwithstanding, for a time, it bore a 
threatening aspect. Another difficulty may arise from 
the haste and anxiety with which the people of a terri- 
tory may wish to improve their condition, without fully 
ascertaining whether they may have acquired sufficient 
strength and ability to take care of themselves. New 
states may entertain an opinion, that they are not only 
entitled to political power equal to any other state, (to 
which they are entitled,) but are also entitled to have an 
extra protection and expenditure in their behalf from the 
public treasury, so as thereby to be placed upon an 
equality, in the extent of their wealth and business, with 
the states of an earlier origin. In private life, it is not 
unusual to find young people unwilling to begin the 
active pursuits of life, in a moderate, unostentatious man- 
ner, as their fathers may have begun ; so it may be with 
new states. 

Slavery is an evil, a danger; it is surrounded with 
cause of danger. It has no existence in the law of 
nature. It is not in accordance with, but is an exception 
to, the general political theory upon which our institu- 
tions rest. It is local in its character ; and wheresoever it 
does exist, it is by force of the local or municipal law of 
the territory, within and by which it may be established. 
No intendment or presumption is made in favor of its 
•existence, by any general, fundamental public law. 



332 THE SCIENCE OF GOVERNMENT. 

Whenever, or wherever its existence may or shall be 
asserted, it must be proved. When the federal constitu- 
tion was adopted, slavery existed in many of the several 
states, by and under their respective individual and local 
law. As a matter of compromise, those who prepared 
the constitution permitted it to exist, by and under the 
local law ; and so far as it is, or was by that instrument 
permitted to exist, it is upheld and sustained, in and by 
the same instrument. Its ultimate extinction, its final 
remedy, is within the control, and is under the guidance 
of God. Its remedy, so far as you and your system of 
government are or may be concerned, may be stated in 
few and simple terms : that remedy is, let it alone ; leave 
it where the constitution of your country has left it. 
The election of President, and in connection therewith, 
a desire of office, of station, and political place and in- 
fluence, may become the cause or source of difficulty and 
danger. The constitution of the United States has pro- 
vided for the election of President, by the intervention 
and agency of electors. The theory and provision of 
the constitution upon this subject is, that the people, 
voting in the several states of which they are citizens, 
will elect for this important trust men of experience, of 
intellect, and character, who may have acquired a knowl- 
edge of the fitness and capacity of those who may pro- 
pose or be proposed, for the presidency. That the 
electors so chosen will discharge the trust confided in 
accordance with their judgment, improved and corrected 
by any and all information or suggestion which they may 
possess, or have received, bearing upon the selection to 
be made, keeping in mind the character and responsi- 
bility of the trust reposed, not forgetting their duty to 
themselves, to their constituents, to their country. These 
electors are officers or agents known to the law, to the 
constitution ; and as such, should discharge the duty which 



THE SCIENCE OF GOVERNMENT. OOO 

the law, which the constitution imposes. An adherence 
to this theory of the constitution has in form been pre- 
served. In reality, its spirit has departed ; and the Presi- 
dent of the United States is now practically chosen by 
some one of two or more private party conventions or 
caucuses, convened under the auspices and patronage of 
the different party organizations which pervade the 
country. 

These conventions are not peculiar to any particular 
party, but all parties have resorted to them as a mode of 
ascertaining and expressing their respective preference. 
The electors, when chosen, discharge their supposed duty, 
by casting their votes for the person selected by the poli- 
tical caucus of the party to which they may be person- 
ally attached. These conventions had their origin in the 
fact, that they furnished a convenient mode of ascertain- 
ing and concentrating public opinion, from and in every 
part of the country ; their continuance has been occa- 
sionally encouraged and sanctioned by politicians, parti- 
sans, office holders, and office expectants. They may pro- 
duce evil, and they may not ; they are merely private 
organizations, unknown to the law, and have no official 
or personal responsibility which can be reached. If the 
members of these conventions shall be chosen, without 
any improper or undue practice or management imposed 
upon the people ; if they shall be men of integrity, re- 
gardful of the public rights and duties, no apprehension 
of danger can arise. On the other hand, whenever these 
conventions shall be the result of intrigue, or shall be 
composed, to any considerable extent, of office holders or 
office expectants, danger may and must be produced by 
their action. 

Another source of danger may be found in efforts on 
the part of the several states or of their citizens, to en- 
croach upon and to diminish, the rightful jurisdiction 



334 THE SCIENCE OF GOVERNMENT. 

of the federal sovereignty. Efforts of this description 
should be resisted, should be regarded in the same man- 
ner as efforts to produce consolidation are or may be. 

If the one or the other sovereignty, shall successfully, 
for any length of time or in any important particular, 
improperly enlarge its power, the system of government 
under which we live will be shaken ; and it matters not, 
whether the disarrangement shall come from the state or 
the federal branch of our system. Of the same class and 
character is interference by any one of the several 
states in the affairs of another, which, whenever attempted, 
must produce angry and excited feelings, which may be 
easily produced, but not easily subdued. 

Another source of danger exists in an inclination not 
uncommon in persons holding official station, to attend to 
the business of other official persons, by unsolicited coun- 
sel, over whom they have no power or control. The 
governor and the general court of a state, have in many 
instances undertaken, in their official character and sta- 
tion, to approve or disapprove some act of the president, 
or of the congress, over which no state or state officer as 
such has or can have any authority. This course is not 
susceptible of good, in any case ; it may be productive of 
great difficulty. The chief executive officer of a state 
may discuss the condition and business of the community 
over which he exercises an authority, and may consider 
the operation and influence, which may have been pro- 
duced upon the people or their business by the laws 
which operate upon them, including those of the United 
States. Whenever such officer comments upon the offi- 
cial acts of the federal sovereignty with approbation or 
disapproval, with intent to bear upon any party politics 
or organization, he disregards the dignity of his station, 
and thereby may bring reproach upon it. A general 
court of a state may rightfully suggest to congress the 



THE SCIENCE OF GOVERNMENT. 335 

propriety of an amendment of the constitution of the 
United States, and may request its accomplishment ; and 
if a sufficient number, two thirds of the several states, 
concur in a similar application, an amendment may be 
obtained. Whenever the general court of a state under- 
takes officially to pass judgment upon matters without 
its jurisdiction, it can have no influence, and such course 
is objectionable. 

In every part of our system, limitations of power and 
of authority are found. Each sovereignty, every de- 
partment, and every officer acts under and upon a limited 
trust, for the exercise of which those charged therewith, 
and those only, are responsible, and no one should attempt 
to go above or below his station, or its duties. 

In all the private transactions of life in which an in- 
dividual employs two or more distinct agents for several 
and distinct purposes, one agent does not and cannot un- 
dertake to pass judgment upon, or control the conduct 
of the other. This principle is alike applicable to politi- 
cal and commercial agencies. Persons holding office 
under any one of the several states, acting as private 
citizens and not officially, by petition, memorial, remon- 
strance, or through the press, and in various ways, may 
rightfully comment upon the conduct and acts of any 
and of every public officer or department. Such com- 
ment should receive the consideration which its reasons, 
or the character, position, and intelligence of its authors 
may rightfully command. The moral power of a citizen, 
properly exerted, is of great value and import. He has 
a right to express his views, and it may be his duty to 
express them. It is not the duty of an agent to inter- 
meddle in the agency of another ; such interference by 
and between political agents has and should have no 
moral power. 

Another source of evil may arise from the existence 



336 THE SCIENCE OF GOVERNMENT. 

of self-constituted advisers, not known to or recognized 
by the law ; persons who, for the public good, voluntarily 
and without any ostensible personal interest, undertake 
to exercise upon legislative and other departments, an 
outside, external influence. 

Individuals who have private interests which may be 
entitled to protectiou, assert them by petition, or in 
some other open legal manner, and the facts and rights 
dependent thereupon, are ascertained and protected, so 
far as legally or equitably they may be, and such course 
is free from objection. Any effort to influence legis- 
lation for public or private interests, in any other 
than such open application and hearing, must be re- 
garded, in the language of underwriters, extra hazardous. 

One of the inducements to locate the seat of the na- 
tional government at the place in which it now is, had 
its origin in the fact, that the city of Washington was 
thinly inhabited, thus affording to the members of con- 
gress and of other departments, an opportunity to pursue 
their several occupations free from the annoyance and 
evil, which otherwise, it was supposed, might result from 
external influence. Influence of this character, I have 
no doubt, has been and is exerted in every state of the 
union, frequently, and perhaps always, without improper 
or unlawful intent. I have no doubt sound and proper 
legislation may have been facilitated by such influence, 
exerted from honorable and praiseworthy motives. The 
motive which may induce such action, the good which 
may result therefrom, does not authorize the encourage- 
ment, approbation, extension, or continuance of any in- 
fluence, except such as may be exerted in a manner 
which the system contemplates. Information of the con- 
dition of the country, of its business operations, and of its 
rights and duties, may be had by any and every officer 
or department, which has or may have occasion for its 
possession or use. 



THE SCIENCE OF GOVEKNMENT. 337 

Temporary evil has occurred, and from the nature of 
our system will occur, from and by an occasional election 
to office of persons whose character and qualifications 
have not been, and may not be commensurate with the 
duties of the station to which they may have been 
appointed. 

Immigration is a source from which difficulty may 
arise. Some individuals regard it as a subject fraught 
with danger, and as a cause of great apprehension and 
fear. Others, looking at it from an opposite extreme, 
regard it as a matter free from any and all danger or 
cause of anxiety. 

In this, as in all other matters which appertain to or 
are connected with our system, extreme views are to be 
rejected and disregarded. At an early period of our his- 
tory, immigration was sought, solicited, and encouraged. 
At all times it has been regarded with favor ; and we 
have virtually announced to the world, that America 
affords a safe retreat from the supposed political ills and 
evils of other countries. Our country has been benefited 
by immigration in many particulars ; foreigners have ren- 
dered services which should not and cannot be disregarded 
or forgotten. Immigration may produce evil, although, at 
the present time, it may and must be considered remote. 
Land unoccupied, capable of cultivation and improve- 
ment, is abundant, and it affords opportunity for the in- 
dustrious to obtain a comfortable home. The rights 
and privileges of an American, so long as they shall be 
maintained, cannot be diminished in value, because they 
may be enjoyed by others. It is undoubtedly true, that 
an individual who has the moral courage, i^roduced by 
any cause, physical, moral, or political, to sever, to break 
the cords which may have bound him to his native land, 
has the courage, the moral power and ability to adopt, 
to mould himself to, the institutions, the habits <>{' the 

43 



338 THE SCIENCE OF GOVERNMENT. 

country of his adoption. So long as this shall prove true 
in practice, no danger can arise from immigration, unless 
and until our population shall become greater than our 
territory may be adequate to support. Whenever the 
number of those who may here seek repose and exemp- 
tion from wrongs or inconveniences suffered at home, 
shall be so great as to resist and overcome the capacity, 
the power of our institutions to assimilate and mould 
them, our system, as a result, will be endangered. The 
facilities afforded to aliens to obtain the benefits of citi- 
zenship by our laws, are greater than are similar facilities 
in many other countries ; our policy has been humane 
and liberal, and it should be. It should also be mindful 
of our own security and self-preservation. Acquisition of 
territory is a matter from which danger may come. It 
is well calculated to produce danger, because the subject 
will always elicit a diversity of opinion, the intensity of 
which must almost of necessity be increased by party ele- 
ments and considerations. Upon this subject, great con- 
trariety and opposition of opinion must ever exist. Each 
state is jealous of its own position and character, and will 
endeavor to improve them, if practicable, by the acquisi- 
tion or rejection of new territory, as the case may be. 
Independent sovereignties are naturally jealous of their 
independence and sovereignty, frequently without much 
regard to the legal and proper rights of other sove- 
reignties. Between the several states of the American 
union, it has not, heretofore, been the occasion of any 
serious ultimate difficulty, notwithstanding fears well 
grounded have been entertained, that passion and excite- 
ment which has been exhibited might result in producing 
an estrangement. It is the duty and interest of every 
citizen of every state, to resist, to reject jealousy, to 
avoid any and every matter which may produce an ex- 
cited state of the public mind. In \ the daily business 



THE SCIENCE OF GOVERNMENT. 339 

operations which are carried on between individuals, 
men frequently act from impulse, from zeal not well 
balanced or considered. This produces evil to the com- 
munitv. and to those who act from such inducement. 
The same disposition is more frequently indulged in rela- 
tion to public affairs, than it is in connection with indi- 
vidual, personal matters. The people, in their assumed 
capacity of sovereigns, are always conscious and proud of 
their dignity and power. This is not objectionable, it is 
commendable ; they should add deeds to their knowl- 
edge answerable ; they should add charity ; they should 
add love of their country and its institutions. 

Many of the matters to which reference has been 
made, as sources from which difficulty may result, are 
outside, are violations of the system ; these should be 
zealously watched and guarded, suppressed if practicable. 

Throughout the entire course which I have read before 
this Institute, I have endeavored to show, that every 
power has a limit ; that checks and balances are estab- 
lished in every possible way, so far as compatible 
with a free system, so far as they are or may be 
essential to the existence of such system. These 
checks and balances are applicable to the citizens as 
individuals, so well as to the state and to the federal 
sovereignty. They are alike applicable to all the deposi- 
tories of power. I have endeavored to present the 
science of government, as exhibited in the institutions of 
the United States, as it is, without reference to any party 
or personal predilections. If in this respect I have failed, 
the failure is not the result of any wish on my part to 
i latter or mislead. If our system and its institutions 
shall go down, it will be from an excess of liberty, which 
is to be dreaded and avoided, so much as is excess of 
power. The truth of this is legibly written upon all past 
history, which any and every man who reads may learn 



340 THE SCIENCE OF GOVERNMENT. 

for himself. Prosperity has broken and destroyed indi- 
viduals; over whom adversity had no power ; so it is and 
so it may be with states. The United States occupy a 
position which does and will attract the observation of 
other nations. They have exerted, and are constantly 
exerting, a powerful influence in favor of the rights of 
man and the offices of humanity. This has been produced 
by and from our example, our moral power ; and this is 
the power, and the only power which can be usefully or 
rightfully employed, unless to repel foreign aggression or 
invasion. 

In matters of scientific research, in literary produc- 
tions, in legal discussions, some few individuals have 
established a reputation which is acknowledged and ap- 
preciated by those engaged in similar pursuits in other 
lands. This will be extended and increased as our facili- 
ties shall be enlarged. The names of Irving, Marshall, 
Mason, Cooper, Webster, Prescott, Story, Sparks, Fulton, 
Bancroft, Bowditch, to which others might be added, are 
not unknown to the learned and scientific men of other 
countries. 

It remains only to suggest the remedy, by which the 
supposed dangers which have been brought to your 
notice, and others, may be avoided. In presenting this, 
I shall only repeat and put you in possession of the de- 
ductions, which flow from the different subjects discussed. 

The dangers to which reference has been made, and all 
others to which the system is incident, may be avoided, 
so far as human agency or control is adequate to such 
purpose. The system of government which I have ex- 
hibited, contains within itself the remedy. It consists in, 
and depends upon, the existence of four distinct facts or 
political elements, which combined are sufficient to ac- 
complish the end sought. The first fact or political ele- 
ment is, a division of sovereignty, which results from the 



THE SCIENCE OF GOVERNMENT. 341 

creation of a federal or national jurisdiction, for the ex- 
ercise of certain powers ; the creation of a state or local 
jurisdiction, for the exercise of certain other powers. The 
foreign relations of the country, the relation which sub- 
sists between the several states and between the citizens 
of the several states, cannot, except remotely, be affected 
by extent of territory, and then only by an enlarge- 
ment beyond its present extent. These relations are not 
affected perceptibly by the diverse, or even adverse local 
interests, of different sections of the country. So far as 
these matters are concerned, the people of the United 
States have, and can have only one and the same interest. 
In all other matters, those which are of daily concern- 
ment, and in relation to which the local interests of one 
section of the country may not be precisely the same 
with those of another, the several state governments 
come in and exercise their power over small portions of 
territory, in which the habits and interests of the people 
are in unison. The state government is near at hand ; its 
operations are constantly perceived and observed, and 
are controlled by a small number of people, when con- 
trasted with the entire population of the United States. 
By reason of this division or arrangement of sovereignty, 
extent of territory, and diversity of interest, have no 
practical or objectionable existence. 

The second fact or element is, the creation and estab- 
lishment, in each of the sovereignties, state and national, 
of distinct departments, or political institutions, by the 
means of which the trusts confided to these sovereign- 
ties are executed, and the rights of the citizen sustained. 
They are designated the legislative, the judicial, and the 
executive. These departments or political institutions 
act as checks upon each other, upon the government as a 
system or whole, and upon the people. The third fact or 
element is found in the existence of tvritten constitutions, in 



342 THE SCIENCE OF GOVERNMENT. 

and by which the two sovereignties which constitute our 
system, and their several departments, are controlled, 
defined, and limited. These constitutions contain the 
organic and fundamental laws under which we live, and 
have, to some extent, a permanent existence, inasmuch as 
they cannot be amended or changed, except in the mode 
prescribed, and with the consent of a large proportion of 
the people. This consent must be ascertained, under cer- 
tain modes, prescribed by law, which are designed to pre- 
vent haste or sucfden impulse, and to afford an abundant 
opportunity for examination, reflection, and the exercise 
of a calm judgment upon any and every proposed amend- 
ment or change. These three facts or political elements 
may be regarded as the basis of our internal, social, and 
political institutions of every character or description, 
either state or national, public or private. They have 
done much, and are competent to do much, in the support 
and maintenance of our system of government* they 
may become ineffectual, and inadequate to control some 
political vicissitude which may occur at some future 
period of our history ; they will become ineffectual and 
insufficient, unless they shall be aided and be made 
perfect by a continued and ever present existence of 
the fourth fact or political element, which is, the educa- 
tion and integrity of the jjeojrfe. So long as the people 
of the United States shall be intelligent and educated, 
shall maintain inviolate their integrity, shall know 
no north, no south, their country and its destiny will 
be one ; their system will resist and repel every dan- 
ger, will survive all and every cause of danger, ex- 
cept such as may result from the imperfection which 
ever has surrounded, and ever must surround all things 
human. If our system is destined to live, as I trust it is, 
it must live, it can live only in and upon the moral power 



THE SCIENCE OF GOVERNMENT. 343 

of the people ; it must live, it can live only in a calm, 
well considered, dispassionate public opinion. In the 
formation of this opinion, you, as well as jouv neighbors, 
have a responsibility which you may not, which you can- 
not shake off or avoid. 



ERRATA. 



Page 8, line 28, for dictates read dictated. 

55, " 16, « to " as. 

56, " 24, omit semicolon after thereby. 
56, « 25, add " " r/etainerf. 

134, " 6, for controlled read uncontrolled. 
145, " 26, " piracies " robberies. 



m 



